Issue link: https://maltatoday.uberflip.com/i/467065
32 maltatoday, SUNDAY, 22 FEBRUARY 2015 Opinion A Small Claims Tribunal presided by Dr Censu Galea, in Anthony and Mary Dolores Montebello -v- Falk Lindner and Jaynell Lindner, held on 17 February that it was competent to decide on claims derived from lease agreements after the lease was terminated. Applicants Montebello held that the defendants, Lindner, owed €2,303 which represented rent and the consumption of water and electricity of a residence in Birkirkara. The Lindners were called upon to pay various times, but failed to do so. The defendants replied by saying among other pleas, that the Tribunal lacked competence in that according to Article 1525 of the Civil Code, it is the Rent Regulation Board that has exclusive jurisdiction to hear these type of cases. Dr Galea examined the background of the case where the defendants rented a property in Birkirkara, where together with the rent every month, they also paid various amounts for water and electricity. In January 2014, the defendants rang the applicants informing them of a leak in the roof and asked them to fix it. The problem was not solved and therefore, the Lindners left the premises. After they vacated the property they did not pay the rent, since they had paid up till 10 February 2014. The landlords refused to accept the keys. The Tribunal then considered the plea of competence, which could have been raised by the Tribunal itself. Article 1525(1) of the Civil Code reads: (1) A contract of letting and hiring, whether of things or of work and labour, may be made either verbally or in writing, provided that a contract of letting and hiring of urban property and of a residence and of a commercial tenement entered into after the 1st January, 2010 shall be in writing. The Rent Regulation Board, (hereinafter referred to as the "Rent Board"), established under the Reletting of Urban Property (Regulation) Ordinance shall have exclusive competence to decide on all matters relating to contracts of lease of urban property and of a residence and of commercial tenements. Other leases fall under the competence of the courts of civil jurisdiction while matters relating to agricultural leases shall fall under the competence of the Rural Leases Contol Board appointed according to the provisions of the Agricultural Leases (Reletting) Act. Dr Galea then quoted from a Court of Appeal judgement, PL J Privitera noe -v- Josephine Camilleri, which on 16 July, 2012, held that all issues concerning rent should be dealt with exclusively by the Rent Regulation Board and this plea may be raised by the court even though none of the parties raised the issue of competence. The same judgement held that a special law gives exclusive competence concerning the Rent Regulation Board and as a consequence those cases which were heard by the ordinary courts, after the amendments of 2009 were to be heard by the Board. Therefore, Article 3 of the Small Claims Tribunal concerning money claims does not apply and the Tribunal is not competent to hear them. Following the 2009 amendments to the rent laws, Article 16(4) of the Reletting of Urban Property (Regulation) Ordinance now reads: "(4) Without prejudice to any other law the Board shall also decide all matters affecting the leases of urban property including residential as well as commercial property in terms of Title IX of Part II of Book Second of the Civil Code, of Contracts of Letting and Hiring, including causes relating to the occupation of urban property where such leases have expired." However, in Article 39(5) of the amendments found in Act X of 2009 states that the cases of contract of lease that on 1 January 2010 were still pending before the Courts and Tribunals are to be heard by the same Courts and Tribunals. The implication according to the Small Claims Tribunal is that every issue concerning a contract of lease was under the competence of the Rent Regulation Board. In a previous judgement, Massih Massihnia -v- Stivala Properties Limited, decided by the First Hall of the Civil Courts on 2 July, 2013 it was held that the Rent Regulation Board is a special tribunal and therefore, its jurisdiction should be interpreted narrowly and the jurisdiction of the ordinary court should prevail where the Board's jurisdiction is not clear. Therefore, any claim that arises after the termination of the lease cannot be heard by the Rent Regulation Board. This was also held in another judgment Enriketta Bonnici -v- Gordon Borg decided by the Rent Regulation Board on 28 June, 2012, where a distinction was made between ongoing leases and terminated leases. The Board was competent to hear cases in the former instance, while the courts are competent to heard cases concerning leases which have been terminated. Dr Galea held that from the evidence produced the lease was terminated and the applicants are claiming payment according to the lease agreement. The Tribunal then held that it was competent to hear and decide this particular case. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt A planning application for the change of use from a timber store, currently located at second floor level of a four storey warehouse, to a "performing arts studio" was initially turned down by MEPA's Planning Commission after it held that accepting such use in an industrial area is tantamount to a further loss of designated industrial space through uses which are not required/compatible within that same industrial zone. To support its arguments, the Commission made reference to those acceptable land uses which are specifically permitted in industrial zones (as listed in policy CG 15 of the Central Malta Local Plan) and which incidentally fail to include Class 8 (b) uses, namely residential or non-residential schools, colleges and training centres. As a reaction, the applicant lodged an appeal before the Environment and Planning Tribunal, arguing in his submissions that Class 8 (b) uses as defined in the Development Planning (Use Classes) Order 1994 refers to residential or non- residential schools, colleges and training centres. The applicant thus contended that, contrary to what the Authority alleged, performing studios may not be assessed in terms of Class 8 (b) provisions. In his submissions, the applicant went on to state that "a performing arts studio cannot by any stretch of the imagination be termed a school or college, and whilst training may be given, this is only part of the activities which will be held at the premises, which would also include production, both visual and sound." Furthermore, the applicant underlined that the Development Planning (Use Classes) Order 1994 was (since the time of the decision) repealed and replaced by Legal Notice 74 of 2014, the latter which qualifies "the making of any article or part of any article including a film, video or sound recording as forming part" under "light industry". In that way, the applicant contended that the proposal now qualifies as an industrial use. For its part, the Authority reiterated that a performing studio, "where tutors will be assisting dancing sessions" qualifies as a training centre and cannot, by any stretch of the imagination, be considered as an "industrial use". The case officer added that the applicant had at no point prior to the Commission's decision stated that the activities would include visual and sound production. In its assessment, the Tribunal opined that performing arts studios do not fall under any of the listed classes attached to Legal Notice 74 of 2014. But even so, the Tribunal maintained that it is not desirable to have such studios in a residential area. In its conclusions, the Tribunal noted that the proposed use was, in this case, restricted to one f loor and hence the predominant use of the building (that is the other three f loors) was to remain industrial as required by the Local Plan. Against this background, the Tribunal ordered the MEPA to issue the permit. robert@rmperiti.com Robert Musumeci is a warranted architect and civil engineer. He also holds a Masters Degree in Conservation and a degree in law The Tribunal noted that the proposed use was, in this case, restricted to one floor and hence the predominant use of the building (that is the other three floors) was to remain industrial Robert Musumeci MEPAwatch "Dance studios" not defined in amended Use Classes Order Tribunal rules it is competent to decide on claims deriving from leases