Issue link: https://maltatoday.uberflip.com/i/773562
46 maltatoday, SUNDAY, 15 JANUARY 2017 Opinion T he First Hall of the Civil Court held that the tenant of any rented property has a legal obligation to take care of that property, as a father takes care of his family, and is to pay for all damages caused. This was decided by Ms Justice Anna Felice on 10 January, 2017 in Eman Pace -v- Daham Al Hamad. In his application, Pace explained that in December 2014, he rented a premises to the defendant, Al Hamad, in Hal Ghaxaq, who failed to pay rent from January to October 2015. He further failed to pay water and electricity bills and damaged the property. Pace asked the Court to order Al Hamad to pay for everything outstanding. The defendant replied that he has nothing outstanding and had paid for all the rent and the electricity bills. He also denied that he had caused damages to the premises. Ms Justice Felice went through the evidence produced, the first being the lease agreement between the two parties. The tenant was bound to pay the rent and a separate contribution for water and electricity consumption. According to the agreement, if these payments are not paid, then the rent will increase by €15 a day and the landlord has a right to terminate the agreement. If the tenant fails to vacate the premises once the lease is terminated, then a penalty of €120 per day is imposed upon the tenant. From the evidence produced the lease was in fact terminated and the defendant left the premises by returning the keys to the plaintiff. It also resulted that the premises was rented to the defendant, but also to a certain Reqah Awad. Regarding the defendant's claim that all the rent was paid, it is up to the defendant to prove this. In fact, the Court quoted a previous judgment, Malcolm Pace -v- Karl Azzopardi decided on 14 October, 2014, which held that in the normal course of proceedings, the person who alleges payment must substantiate this. Payment may be proved, not only by receipts but also by witnesses, other documentary evidence and circumstantial evidence which may convince the judge. The defendant did not prove the payments made and therefore, the Court held that the plaintiff was correct in the claim of non-payment of rent and utility bills. As regard to the claim to charge the penalty, the Court commented that the penalty would have been imposed had he not vacated the premises. Evidence pointed to the fact that the defendant did in fact, vacate the premises. With regard to the penalty of €15 increase in rent per day, the Court held that this is legally unsustainable, since the lease is terminated, one cannot increase the rent as this would run contrary to Article 1120 of the Civil Code. As regard to the bills of ARMS Limited's bills, when the parties entered the lease agreement in December 2014, there was a pending bill. The plaintiff claimed that he had paid €1,000 for utility bills for 2015. The Court took into account the utility bills from January 2015 to the end of October 2015, when the defendant vacated the premises, and deduct €1,000. With regard to the damages caused by the tenants to the premises, the plaintiff 's architect calculated €15,000 worth of damage. The Court quoted from Frances Cassar -v- B&M Supplies Ltd decided on 1 December, 2004, which said that the tenant must take care of the premises as though it were his and should carry out repairs in terms of Article 1556 of the Civil Code. Although the defendant denied any wrongdoing, the Court was not convinced and ordered him to pay for the outstanding rent and utility bills and the damage. Dr Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates A planning application for the raising of a parapet wall on the roof of an ODZ farmhouse was submitted to the then Malta Environment and Planning Authority (MEPA) for a decision. This application was submitted following a judgment delivered by the Court of Appeal. But even so, the Authority refused the applicant's request, citing environment-related reasons. Indeed, the dwelling in question is situated in a very exposed location on Dingli Cliffs. In its refusal report, the Authority's Commission highlighted that the proposed parapet wall is located within a scheduled Area of Ecological Importance, Area of High landscape Value, a Special Protection Area and a Special Area of Conservation. It was further held that the proposal runs counter to the Strategic Plan for the Environment and Development (SPED) and Policy 1.2H of the Rural Policy, which expressly provides that "structures which would adversely affect the scenic value, character and integrity of the landscape or the setting of coastal cliffs, will not be permitted." Subsequently, the applicant lodged an appeal against the Commission's decision before the Environment and Planning Review Tribunal, insisting that his application was "generated by a Court of Appeal decision" which had directed the applicant "to carry out the proposed works in the default of the accused not doing so within the time limit set by the Courts." The applicant maintained that the Authority had no right to "confront a judgement of the highest institution on the Island." Concluding, the applicant requested the Tribunal to overrule the Authority's decision. In reply, the case officer reiterated that the dwelling in question is located in a very sensitive area, as a result of which the proposed wall "would create an adverse visual impact" since "it detracts from the scenic value of the landscape and the coastal cliffs." The case officer further explained that the wall in question lies along the division line which separates the applicant's site from his neighbour's property. Moreover, the case officer observed that the Court judgment quoted by the applicant was no longer relevant since the decision was given in the light of a planning permission which had since been revoked. In its assessment, the Tribunal observed that the dwelling in question is located in a very sensitive site, adding that the applicant's proposal would result in the creation of an exposed high blank party wall. The Tribunal referred to a similar request relative to a roof in Valletta, which application was also rejected on similar grounds. The Tribunal maintained that a distinction should be made between between civil and planning issues, adding that privacy could still be attained in this case without the need to create a blank party wall. Against this background, the Tribunal confirmed the Authority's decision. Dr Musumeci is a perit and a Doctor of Laws with an interest in development planning law robert@rmperiti.com Tribunal rejects application despite Court direction Robert Musumeci Privacy could still be attained without the need to raise the boundary wall Tenant is legally bound to take care of his premises as though it were his own Malcolm Mifsud mmifsud@mifsudadvocates.com.mt