Issue link: https://maltatoday.uberflip.com/i/878567
46 maltatoday, SUNDAY, 24 SEPTEMBER 2017 Opinion W hen a tenant fails to perform maintenance, which leads to serious damage to the rented property, then the tenant may be evicted from that property. This was held by Magistrate Josette Demicoli, who presided the Rent Regulation Board sitting in Joseph and Frances Barbara -v- Maria Concetta Mifsud. The judgement was delivered on 15 September, 2017. The Barbara family filed an application before the Rent Regulation Board, asking to take possession back of a rural entrance (remissa). They explained that in January 1994, they rented to Mifsud two premises in Zejtun for Lm5 a year each. Number 84 was a residence, while 86 was the rural entrance, but there was no regular maintenance and it was full of waste. Now the Barbaras need number 86. Mifsud failed to present a statement of defence and did not make any submissions. Magistrate Demicoli analysed the lease agreement where Mifsud was bound to pay Lm10 for both properties. The lease was renewable yearly and she was also bound not to keep animals on the roof. The board made reference to a previous judgment delivered by the Court of Appeal on 1 December, 2014, Frances Cassar et -v- B&M Supplies Limited. Then the Court held that the tenant, according to Article 1554 of the Civil Court, is bound to use the rented thing as though he was a good father and should carry out maintenance. According to Article 1561 of the Civil Court, the tenant is to answer for any damages caused during his/her possession, when the tenant does not prove that the damage caused is no fault of his. The tenant is also obliged to return the property rented in a good state at the end of the lease. Article 1126(1) of the Civil Code in fact reads: "(1) The obligation to give a thing carries with it the obligation to deliver the thing, and to preserve it until the delivery." This article combined with Article 1561 of the same code puts the burden of proof on the tenant. The board pointed out that when the damage is of a serious nature and irreparable or compromises its conservation, then the thing rented may be returned to the owner. This is also repeated in Article 9(c) of the Reletting of Urban Property (Regulation) Ordinance. However, not any type of damage is adequate to evict a tenant. The lack of maintenance must cause substantial damage. The damage must be of a certain entity and not of little importance. The Courts may order the tenant to carry out works and not apply eviction. In this particular case the board took on board a technical report of experts it appointed. From this report and the evidence produced, the damage found in the rural entrance is not of a small nature. The lack of maintenance rendered this property in an extremely bad state and hindered its enjoyment. The technical expert went on site in Joseph Barbara's presence. They observed that there was a wall which was demolished. The court appointed expert concluded that the property in question is abandoned and maintenance was not carried out for many years. The expert gave a list of works that should be carried out to remedy the damages. The applicants testified by means of an affidavit that they need the property for their tools and since it is abandoned they would like it back. The Rent Regulation Board acceded to Barbara's claims and gave Mifsud one month to vacate. Dr Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates T he Planning Authority had to decide whether to grant planning permission for a new chicken farm together with an underground reservoir, cesspits and a manure clamp. The said farm was set to be located in a field situated in the limits of Mellieha. Following a thorough analysis, the application was turned down due to the following reasons: 1. The location of the farm was close to the designated development zone. The proposal was therefore in violation of Thematic Objective 6.1 of the Strategic Plan for Environment & Development (SPED), which aims 'to safeguard environmental health from air and noise pollution by controlling the location, design and operation of development'; 2. The development would result in 'the obliteration of existing rural features within the site whereas the layout of the proposed structure would be highly visible and difficult to landscape adequately'. The proposal, hence, ran counter to Rural Objectives 1.7 and 4.3(a) which seek to control the cumulative effect of rural development, protect the most sensitive landscapes of cultural importance and natural beauty; 3. The site was not identified as an intensive agricultural zone in the Local Plan; 4. The site featured a number of illegalities. Consequently, no further development could be allowed unless the said illegalities are first removed. In reaction, the applicant appealed the decision before the Environment and Planning Review Tribunal, insisting that the Commission's decision should be reversed. The applicant highlighted that the Commission had allegedly failed to have regard to the surrounding commitment. Specific reference was made to a planning permission for the sanctioning of an existing chicken farm in a location nearby. In addition, the applicant went to observe that he had obtained a 'no objection' from the Department of Environmental Health, the Agriculture Department, the Veterinary Regulation Directorate, the Malta Resources Authority, the Agriculture Advisory Committee, Enemalta and the Natural Heritage Advisory Committee. Concluding, the applicant maintained that his proposal was tantamount to improving an otherwise derelict site, adding that the proposed development was compatible with the surrounding built commitment. In reply, the case officer representing the Planning Authority acknowledged that a permit was issued for a farm in a nearby location. Nevertheless, the applicant's proposal was located within the 200m buffer zone from groundwater sources for human consumption. Moreover, the proposed farm was to be located within 200 metres from the nearest residential zone and hence the proposal was in violation of Thematic Objective 6.1 which aims 'to safeguard environmental health from air and noise pollution'. Contrary to the applicant's assertions, the Malta Resources Authority and the Environment Protection Directorate had expressed concern 'on the sprawl of development within rural areas'. According to the case officer, it was not possible to mitigate the visual impact as previously pointed out by the applicant as 'the proposed landscaping scheme would not effectively mitigate the negative visual impact of the development, due to the farm location having long distant views.' As regards the existing farm located nearby, reference to which was made in the appeal submission, the case officer went to state that the farm was in that case 'already established and licensed'. In its assessment, the Tribunal maintained that the proposal was not in breach of Thematic Objective (TO) 6.1 of the SPED (this policy aims to safeguard environmental health from air and noise pollution by controlling the location, design and operation of development) since the Department of Environmental Health did not object to the proposed development. Nevertheless, the Tribunal was concerned with the interventions since the development would compromise an otherwise unspoilt location, should the permit be issued. For this reason, the Tribunal rejected the appeal. Dr Musumeci is an advocate and an architect with an interest in development planning law Robert Musumeci The proposed interventions would compromise an otherwise unspoilt rural area Malcolm Mifsud Serious lack of maintenance of rented premises may bring about eviction Mellieha chicken farm application rejected