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Requisitioned property not given to owners in the public interest

In a judgement delivered on Monday, 23 June, 2014 the court held that the fact that the original tenant of the property, which was requisitioned in 1977, has since died, does not give the owners the right to take back their property.

malcolm_mifsud
Malcolm Mifsud
4 July 2014, 8:00am
The case, Anna, wife of Anthony Galea, Adrian Salomone, Joanna Bonello Salomone, Jeremy Salomone, Vanessa Said Salomone and Ferdinand Grech –v- The Commissioner of Lands, Joseph Cutajar and the Director of Social Accommodation, was decided by Mr Justice Mark Chetcuti.

In their writ the plaintiffs held that they are co-owners of a residence in Marsa, however the defendants had issued a requisition order and therefore, they lost possession of it. In June 1977 a requisition order was issued to protect Rosina Tanti as a tenant in that property. When Ms Tanti died the Commissioner of Lands, instead of issuing a counter order and giving the property back to the owners, allowed others to occupy the same property. The plaintiffs asked the court to declare the protective requisition order is no longer needed and also to order the Commissioner of Lands to allow them to take possession of their property.

The Commissioner of Lands replied to this writ by saying that he did not issue the requisition order and therefore, should not be a party to this action. The Housing Authority held that the registration order in question covers Joseph Cutajar also since he is the grandson of Rosina Tanti. Furthermore on 23/06/04 Joseph Cutajar was recognised together with his aunt as a tenant by the authority and this took place after Mr Cutajar passed the means test.

Mr Justice Chetcuti examined the facts of the case in that on 17 June, 1977 a requisition order was issued on the Msida residence belonging to the Salomone family. The order was issued after a certain Micallef was not accepting the rent from Rosina Tanti and therefore, the Housing Authority wanted to protect Ms Tanti’s position.

At the time Ms Tanti was living with her daughter and the latter’s husband, together with four children, one of whom is Joseph Cutajar. Ms Tanti died in 1979 after which the rent was being deposited in court. The rest of the family continue to live in the same premises together with Rosina’s sister Annie. In 1993 the Salomone family filed an action in court, however, nobody seems to know what happened to that case. Annie Tanti died in 2005 and Joseph Cutajar continued to live in this property on his own. The Housing Authority carried out inspections and always found Mr Cutajar living there.

The Court commented that the plaintiffs did not peg their claim to any law and they were asking for the order’s removal simply because there was no need for Ms Rosina Tanti to be protected anymore. They also claimed that the authority abused its power when it recognised Joseph Cutajar. The plaintiffs were not asking for a human rights remedy nor were they requesting a judicial review. The Court quoted from a previous judgment, Paul Borg –v- Direttur tal-Akkomodazzjoni Socjali, decided on 3 February, 2012 when the court held that the Housing Act was aimed at assisting the lack of accommodation and respect peoples’ right to have a place where to live. In fact Article 3(1) of the Housing Act reads:

If it appears to the Director of Social Housing to be necessary or expedient so to do in the public interest, but only for the purpose of providing living accommodation to persons or of ensuring a fair distribution of such living accommodation, he may requisition any building, and may give such directions as appear to him to be necessary or expedient in order that the requisition may be put into effect and complied with.

 In another judgement Edwards pro et noe –v- Direttur tal-Akkomodazzjoni Socjali, decided on 3 October, 2003, the Court held that the law is based upon three independent considerations. The first of public interest, the second the provision of housing and the third is the distribution of housing according to equity. 

When a requisition order is issued it essentially removes the property from the owner and gives it to the Housing Authority. In this particular case the Housing Authority gave its protection to Mr Cutajar, who lived in the property when the requisition order was first issued. The authority further protected Mr Cutajar in 2004, because he met all the criteria. This last notice of requisition was notified to the owners, but it was not contested as they had a right to. 

The Court concluded by turning down the plaintiffs’ claims.

Dr Malcolm Mifsud

Partner

Mifsud & Mifsud Advocates

malcolm_mifsud
Malcolm Mifsud is a partner at Mifsud & Associates.
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