Read this report in Times of Malta of a court decision ordering the state to pay compensation to the owners of a warehouse that rented it out in 1976 and have since collected a pittance in rent until the tenant stopped paying them.
As a result of 1979 laws, that still needed to take into account the risk of homelessness because of the damage of World War II, landlords were not allowed to revise the rent to market realities and couldn’t even evict the tenant when they stopped paying. 2009 laws made slight adjustments but nowhere near enough.
The court’s decision found the law to be a breach of rights.
As the report points out this is no surprise. There is a long list of identical court decisions by Maltese courts guided by the European Court of Human Rights that has ruled many times on this specifically Maltese issue.
The fact that people in identical situations are forced to go to court to get a decision identical to many others before it, is an aggravation of the injustice they suffer.
The Venice Commission’s 2018 proposals to the government pushed for the application of the “erga omnes” principle. That’s the principle that once a decision is taken on a set of circumstances that decision would apply “to all” cases with the same set of circumstances. The government said no. And probably they were saying no precisely for these situations that have amounted to an ever-growing cancer we’ve been living with for decades.
What do landlords who think of pursuing their rights need to do today? They need to hire a lawyer and open a case in court. They will be faced by lawyers for the government who will actively seek to undermine their case, to challenge their ownership, or their right to complain. They will spend years fighting this until, inevitably, a court finds they are right. If they haven’t been collecting rent they are then sent to another court to commence the process of asking for eviction.
In simple terms the state does everything in its power to discourage them and to prevent them from accessing their rights. That in itself is a breach of rights.
What can the government do? What it should.
There’s a clear budgetary limitation to address this. If all landlords were to be instantly compensated overnight, the country would go bankrupt and that benefits nobody.
But the state can do a number of things that address the horrible breach of fundamental rights it is currently perpetrating.
The government can ask Parliament to legislate to recognise the rights of landlords who have been suffering from this for so many years.
On the basis of that recognition the government can draw up a scheme to allow landlords to apply for compensation attached to which the applicants would need to provide evidence of their rights. Administrative decisions on whether to recognise such rights would be subject to judicial review.
Once a right is recognised and entitlement to compensation conceded, the landlords would be paid in instalments over a reasonable period of time and within a reasonable budget allocated by the government for the purpose on a yearly basis.
It’s expensive but it’s fair.
This shouldn’t be seen as some tax-funded bounty paid to property owners. The term ‘landlords’ for these people on the wrong end of a rental agreement that predates 1979 are not the developing tycoons of today. In many cases they are people who have lost the value of their property over time nearly entirely to the point where they can no longer think of that property as theirs. If we were to apply the same levels of compensation that the courts have been ordering none of them are going to be turned into instant millionaires.
But it will serve to restore a balance of rights and it will amount to the honouring of the state’s obligation when the state decided in 1979 to protect and subsidise the lives of tenants.
There’s nothing wrong with the state intervening to protect tenants but if it is going to do that then the state should pay the subsidy, not rob it wholesale and for generations from a specific set of people, decades after they have any wealth to give, and exempting everyone else.
Surely if there’s a social obligation to protect vulnerable tenants that obligation belongs to every tax payer, not just to the tax-payers who happen to have owned the property in which the vulnerable tenants live.
The proper conduct of governance is to use tax-money fairly, reasonably, and to restore equity whenever possible. Equity is not just a principle that binds decisions of courts. It is also a principle that is binding on the executive, on government. Repeatedly the courts have ruled the legalised relationship between pre-1979 landlords and pre-1979 tenants as iniquitous. It is incumbent on the government to address that.