Landlords ‘powerless’ against non-paying tenants

The worrying reality of how few cost-effective legal remedies exist for landlords dealing with non-paying tenants was laid bare in court this past week, when a Spanish man walked away with just a fine after attacking his 65-year old landlord with a 19cm knife when the Spaniard was approached to settle an overdue rent payment.

Landlord Carmelo Borg from Gzira says that it was only through the media that he had heard of Wednesday’s arraignment of Julian Ismael Hernando Calvo, who appeared before Magistrate Doreen Clarke charged with carrying a knife in public without a licence, attacking Borg and his estate agent and threatening them.

Calvo pleaded guilty and was fined a paltry €176 in total.

Borg’s lawyer, Robert Piscopo, told MaltaToday that neither he nor his client had been notified, as parte civile, with details of the arraignment. This had pulled the rug from underneath the landlord, said the lawyer, as Borg was expecting to testify together with the estate agent who had accompanied him to collect the rent payment.

In addition, although the sentence states that prosecuting inspector Jonathan Ransley had requested a protection order for the victim, there is no mention of this request being upheld.

Speaking after the light punishment was handed down, a disheartened Borg told MaltaToday that he felt justice was not done and that he now felt more exposed than ever.

Borg explained that he had bought the flat as a rental investment to augment his state pension and fund the maintenance payments he made for his son and this arrangement had worked until Calvo and Co. moved in.

“They had refused to pay their first rent, so I had gone with the estate agent to collect it in person,” he said.

The Spanish men had just laughed at them, before driving them out of the flat at knifepoint, he said. “It’s not right. So it’s OK for them to attack me and not pay their rent but if I don’t pay maintenance for my son, I will go to prison,” the man said, voice breaking with emotion.

“Do I need to purchase a firearm now, just to go collect my rent?” he asked.

“Landlords cannot simply change the lock”

Lawyer Stefano Filletti says the problem is a common and very problematic one for landlords. “The reason lies in the fact that landlords do not have the legal right to take any direct action to evict the tenant,” he explains. The police cannot intervene unless a crime is committed and neither can the landlord simply change the lock. “Doing that without a court order to suspend access to the premises, even if the tenant is in breach of contract, would be the exercise of a pretended right – a criminal offence.

“The law, in principle, never allows the citizen to take the law into their own hands,” Filletti said.

That leaves the landlord with only one possible remedy: filing a civil court case, which will inevitably take years to be resolved. “At the end of the civil process – including the resolution of any possible appeals, if the tenant still refuses to leave, then the warrant for forcible eviction can be applied for.

“The court can entertain the landlord’s requests for compensation, but this will not assist the landlord if the tenant has no money to pay with.”

Worse, one would be wrong to expect that the landlord could then turn to the estate agent for compensation, added the lawyer.

“The agent would normally not be liable as he is not responsible for the actions of the tenant. His job is only to introduce the two parties, explained the lawyer. “Letting agents are not responsible for damages caused by a tenant or his refusal to leave, nor are they responsible for faulty premises being leased by a landlord.”

That is not to say that it cannot be added, however. “It can conceivably be added as a special condition, but that is not the norm, because no landlord enters into a tenancy agreement aiming to end up in court.”