Issue link: https://maltatoday.uberflip.com/i/820803
52 maltatoday, SUNDAY, 7 MAY 2017 Opinion T he act of a widow taking over the lease of a butcher shop does not constitute a sublease. This was decided by Magistrate Joanne Vella Cuschieri on 2 May, 2017 in Victoria Attard -v- Giorgia Mercieca and Angela Mercieca. In her application, Victoria Attard explained to the Rent Regulation Board in Gozo, that she is the owner of a shop in Xaghra and recently discovered that the tenant, Giorgia Mercieca handed over the shop to her son's widow, Angela Merceica. Article 1614 of the Civil Code does not permit such subletting, since the lease was given exclusively to Giorgia Mercieca and Attard never authorised her to pass it to her daughter in law. As a result Attard is asking for the lease to be terminated and that she will take possession of the shop. The two defendants filed a number of pleas, amongst which they explained that Giorgia Mercieca had rented the shop 43 years ago, for her son Sammy Mercieca, because originally he was still underage. The defendants claimed that Attard knew that Angela Mercieca was running the shop and therefore, she had given her tacit consent. Magistrate Vella Cuschieri analysed the issues, where Giorgia Mercieca had rented the butcher shop and her son, Sammy, immediately ran the shop, even though he was under 18 years of age. However, when he died in 2007, his wife Angela took over the shop. Attard is claiming that this is tantamount to a sublease. The board then analysed Article 1614 of the Civil Code: "(1) The lessee is not entitled to sub-let a thing or to assign its lease, unless such right was agreed upon in the contract. (2) For the purposes of this Sub- title, a management agreement or any other form of agreement, by means of which a lessee transfers to third parties the possession of the tenement or of the business operated from the commercial tenement shall be considered as sub-letting. (3) Where the lessee is a limited liability company or any other form of company, the cumulative inter vivos transfer of fifty per cent of the shareholding, even if carried out by means of more than one transfer and, or the transfer of the actual controlling power of the administration of such company or of the control of the business conducted from the tenement shall be considered as a sublease: Provided that such a transfer shall not be considered as a sublease if the transfer was made to the wife or husband who are not legally separated and, or to the children of the shareholder." From the evidence produced it is evident that Sammy Mercieca always ran the shop, although his mother was the tenant. Upon his death, his wife Angela took over. The rent receipts always quoted Giorgia Mercieca. When Sammy Mercieca married, his wife Angela also helped out in the shop. Attard had testified that she knew of the situation that Sammy Mercieca was running the butcher shop and not the tenant, but when he died, she did not expect that the widow would take over herself. She held that in fact when she first rented out the shop to Giorgia Mercieca, she ran the shop with her husband Kurun and as Sammy was their son, he used to help out at a later stage. Giorgia Mercieca denied this in an affidavit and confirmed that her son Sammy had taken over the shop from the beginning of the lease and at a very young age. In fact the shop was named Sammy's Butcher. Other evidence included the Commerce Department, which confirmed that the trading licence was in Giorgia Mercieca's name, the electricity meter was on Kurun Mercieca's name. The board held in the judgement that the owners were aware that the tenant was not running the shop, but her son was and in fact accepted the rent from Sammy and Angela Mercieca. However, this does not mean that they authorised a sublease. The board did not find any evidence of sublease from Giorgia Mercieca to Angela Mercieca, but this was a mere continuation of the running of the shop, which Sammy did before his demise. There are no management agreements between the parties. The evidence showed that it was never intended that Giorgia Mercieca would run the shop personally but her son would do so. As a result there is no sublease and the application was turned down. Dr Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates A planning application contemplating the enlargement of a timber canopy situated next to a kiosk was initially turned down by the Planning Commission. The submitted drawings showed an 'extension' made of timber and retractable glass curtains. The kiosk in question is located on the Sliema promenade in Tower Road. In its decision, the Commission held inter alia that the proposed interventions 'would lead to an over-development of the site'. According to the Commission, the proposal was not 'in the interests of the amenity of the area as a whole'. To sustain its position, the Commission made specific reference to SPED Thematic Objective 6.1 and Urban Objectives 3.5 and 4.2. The Commission was also of the opinion that, were it to be approved, the proposal 'would adversely impinge on the setting and appearance of the existing open space and on the visual amenity of the surrounding area'. In conclusion, the Commission highlighted that the drawings failed to satisfy the standard 'access for all' requirements. In reaction, the applicant lodged an appeal before the Environment and Planning Review Tribunal, insisting that the canopy 'had no impact whatsoever on air pollution'. If anything, the noise pollution would be controlled once the tables and chairs were to be enclosed. Referring to the opposite side of the road, the applicant further maintained that the interventions would not jeopardise 'the character and amenity' of the residential area. Concluding, the applicant said that his proposal was not in conflict with policy NHRL 01 of the North Harbour Local Plan (this policy states that "planning permission will not be granted for development resulting in the loss of urban public open spaces") since the timber extension occupied less than 10% of an open area, in any which case, was located within the curtilage of his premises. As a final point, the Tribunal was reminded that the designs incorporated a ramp which would eventually provide unhindered access to the covered terrace. For its part, the Authority reiterated that the applicant's proposal went against the interest of the amenity of the area. Once again, the case officer insisted that the extension amounted to 'over-development and intensification of the use in a public area'. The Tribunal was reminded that the proposal went against current planning policies given that kiosks should not, in principle, 'block sea views for stretches of over five metres or block views from interesting spaces within the adjoining urban areas'. In this case, it was alleged that the existing kiosk had already a frontage length of eight metres, which was being extended to 11.2 metres (thus, well over five metres). In its assessment, the Tribunal nonetheless observed that the Authority had already issued a permit for a canopy on this site following a 2010 application. More so, the Tribunal concluded that the proposed extension was minimal and the Authority was consequently ordered to issue the relative planning permit. Robert Musumeci is an advocate and a perit with an interest in development planning law Kiosk extension considered minimal Robert Musumeci Malcolm Mifsud Lease taken over by widow is not a sublease The Authority had already given permission for a canopy following a 2010 application