Issue link: https://maltatoday.uberflip.com/i/1484063
3 maltatoday | SUNDAY • 13 NOVEMBER 2022 NEWS €510,000 compensation for owner but no eviction for Hamrun band club MATTHEW AGIUS THE noble family that owns the Hamrun property occupied by the San Gejtanu band club for the past 96 years, has been awarded €510,000 in compen- sation from the State, after the law under which she could nei- ther terminate the lease, nor increase the rent, was declared to have breached her rights. The Hamrun property on the St Joseph High Street, fac- ing directly the Saint Cajetan church, belongs to the heirs of Baroness Marie Christian Ramsay Pergola, who inherited the property from the Marquis Giovanni Scicluna. In terms of the contract signed in 1926, the building was leased by Francesco Portanier to the San Gejtanu Band Club, for a period of eight years, against payment of an annual rent of £120 (€279.52). A year before that contract expired, Port- anier was granted a 30-year emphyteusis over the land by the Marquis. Nine years later, in 1934, Scicluna acquired the right to use the property for the remaining period of the 30-year period, thereby con- solidating his right to absolute ownership of the property at the end of the emphyteusis. When the lease contract ex- pired on 31 August 1942, the band club opted to renew the lease to Scicluna in terms of the Reletting of Urban Prop- erty (Regulation) Ordinance, which had been introduced in June 1931. The plaintiff, and later her heirs, argued that because of the application of that law, to- day the annual rent was still on- ly €361.32. The band club had also offered €945.75 in terms of a legal notice introduced in 2014 which regulated the Leas- es of Clubs Regulations. The total amount payable in annual rent was therefore €1,307.07 in 2015. The 1,295 square metre prop- erty was valued at an estimated €2,000,000 in 2016, according to an architect's report, which meant that the actual rental in- come was only 0.06% of the real value of the property. The 2009 amendments to the Civil Code, which had in- troduced some protection to landlords owning commercial premises, did not apply to leas- es of musical, charitable, social, sporting or political party clubs that had been entered into be- fore 1995. The law, in fact, ex- plicitly excluded such clubs from the definition of a com- mercial premises. The plaintiff argued that this situation constituted a breach of the right to peaceful enjoy- ment of property under the European Convention as it left her with no way to reclaim possession of her property and prevented her from increasing its rent to reflect current mar- ket rates, at the same time. In its reply, the State, rep- resented by the Office of the State Advocate, argued that there had been no forcible takeover of the plaintiff's prop- erty, as the original contract of lease had freely been entered into and, indeed, renewed by the original owner. It was also argued that the lease in question did not fall within the parameters speci- fied by the European Conven- tion as the protection of band club leases emerged from the law, with the legitimate aim of protecting the national so- cio-cultural identity. For its part, the San Gejtanu band club also objected to the request to change the rent, ar- guing amongst other things, that it was not a legitimate de- fendant and had not violated the plaintiffs' human rights. Declaring that the plain- tiff's rights had indeed been breached, the First Hall of the Civil Court presided by Mr. Justice Robert Mangion, ob- served that the State's right to interfere with an individual's peaceful enjoyment of proper- ty for public purposes, "always remains the exception to the rule." Even in circumstances where such interference was permit- ted, a balance still had to be struck between the interests of society in general and those of the individual affected by the State's actions. While the court recognised that band clubs were an inte- gral part of the community, to which they also contributed by providing young people op- portunities to learn music, this need could not be placed on the same level as social accom- modation cases where families were at risk of losing the roof over their heads. It was not enough for the State to have been acting with- in the parameters of national law and in the public interest when it comes to depriving an owner of the enjoyment of his property, said the judge. "In the present case, the allegation…is that precisely by operation of a law promulgated by the State through its legislative arm, had breached a fundamental right." The judge ruled that the law "had and continued to place" a disproportionate burden on owners so as to protect the band clubs renting their prop- erty. He noted that no legislative amendments had been intro- duced to address the imbalance in protection with respect to band clubs, unlike what had been done with residential leas- es. "To the contrary, the legis- lative intervention was to bring to nothing the executive effect of judgments which had found fundamental rights breaches by club leases." Awarding damages to the plaintiff, the court ordered the defendants to pay €500,000 for the loss of rental income and another €10,000 in non-pecu- niary damages. While ruling that the band club could not continue to rely on the ordinance to renew the lease, the court rejected the re- quest for the band club's evic- tion from the premises. A court of constitutional ju- risdiction was not the ideal fo- rum to rule on this issue, said the judge, explaining that the matter was one for the courts of ordinary jurisdiction to de- cide. Marquis Scicluna heirs awarded €510,000 in damages from the State over inability to raise rental rates for Hamrun property once leased to Saint Cajetan band club While the court recognised that band clubs were an integral part of the community, to which they also contributed by providing young people opportunities to learn music, this need could not be placed on the same level as social accommodation cases where families were at risk of losing the roof over their heads.