European Court puts at risk five-year reprieve that protects tenants from eviction

A decision by the European Court of Human Rights this week on recent changes to Malta’s rent control laws, could endanger the government’s attempts at stopping any evictions of aged tenants. 

The ECHR decision this week declared that the 2018 changes to the Housing (Decontrol) Ordinance, which allowed tenants a five-year reprieve before eviction, interfered with landlords’ right to property. 

The 2018 amendments for houses held under pre-1995 leases, allowed owners to revise controlled rents up to a maximum of 2% of the property’s value and then only for tenants who satisfy a means test. However, tenants who do not satisfy the means test were still allowed a five-year reprieve before vacating the property, at double the rent payable at the time. 

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The Strasbourg court this week however said this interferes with landlords’ right to property: “This procedure would allow an unmeritorious tenant – namely one who is not in need of social protection because he or she has not fulfilled the relevant means test – to continue occupying the premises for five years. The Court cannot accept that following a favourable judgment of the constitutional jurisdictions... an aggrieved applicant must remain the victim of an interference which no longer pursues a legitimate aim for at least five more years. In reality, more than five years, since that period only starts to run after the decision of the RRB, which, moreover, is amenable to appeal.” 

The ECHR case concerns the owner of a decontrolled Għaxaq house, which had been leased on a 17-year contract at an annual Lm25 (€58) since 1968, and then sub-leased once again to a couple. 

After the passing of the 1979 Housing (Decontrol) Ordinance, the sub-lessors retained the property under title of lease, at an annual rent of Lm50 as of 1999. In 2009, the rent was increased to €185, and then €197 in 2013, and €200 in 2017. 

During the tenancy the couple did not own any other property. The husband was on a low wage and was, for some time, unemployed. He is today retired and receives a pension of €515 a month. The property was valued at some €165,000. 

In 2017 Cauchi instituted constitutional proceedings, arguing that the 1979 law that gives tenants the right to retain possession of the premises under a lease, was imposed on her without a fair and adequate rent, in breach of the European Human Rights Convention. 

In 2018, Cauchi was awarded €20,000 in compensation by the Maltese courts, which declared that the tenants and their descendants could no longer rely on the 1979 Housing ordinance, as they had done for the preceding 34 years. 

That court said Cauchi was not receiving fair compensation in exchange for the burden imposed by law. But it refused the eviction of the tenant, saying it was not the appropriate court to take such action. Instead it said the tenants should be prevented from relying on the Ordinance, in any future eviction proceedings. 

The applicant did not appeal, because the Constitutional Court was systematically reducing the awards given by the first instance courts. 

Cauchi was however unable to institute eviction proceedings, because the 2018 amendmenrts to the Housing (Decontrol) Ordinance made it unlawful to proceed with an eviction. 

She took the case to the Strasbourg court, where the Maltese government submitted that Cauchi had lost her victim status after being awarded her due compensation. 

But the European Court of Human Rights decreed that the 2018 amendments are not a suitable safeguard but another cumbersome legal obstacle. 

Under this procedure, a tenant who qualifies under a means test can continue to reside in the property at a protected rent raised up to only 2% of the market value of the property. The increase was also at the wide discretion of the Rent Regulation Board. And if the tenant did not satisfy the means test they would nevertheless be allowed to live in the premises for five years at double the rent currently being paid. 

“The Court has repeatedly found that although constitutional redress proceedings are an effective remedy in theory, they are not so in practice in cases such as the present one. 

“In consequence, they cannot be considered an effective remedy... concerning arguable complaints in respect of the rent laws in place, which, though lawful and pursuing legitimate objectives, impose an excessive individual burden on applicants,” said the court. 

The Court said it “cannot accept that following a favourable judgment of the constitutional jurisdictions, whether at first-instance or on appeal before the Constitutional Court, an aggrieved applicant must remain the victim of an interference which no longer pursues a legitimate aim for at least five more years. In reality, more than five years, since that period only starts to run after the decisions of the RRB, which moreover, is amenable to appeal.” 

The court awarded Cauchi €20,000 in pecuniary damages and €10,000 non-pecuniary damages plus €1,440 in costs and expenses in domestic proceedings.