Expropriation, put simply, is the process through which the government takes private property for public use, frequently despite the property owner’s objections.

Preliminary, article 321 of chapter 16 of the laws of Malta provides that no person can be compelled to give up his property or to permit any other person to make use of it, except for a public purpose and upon payment of a fair compensation.

The Government Lands Act, Chapter 573 of the Laws of Malta came into force by way of Act XVII of 2017 which replaced and repealed the already existing Chapter 88 of the Laws of Malta; the land acquisition (Public Purposes) Ordinance. The promulgation of Chapter 573 was aimed at overseeing among other things, the process of land acquisition and to set forth the procedures to be adhered to in relation to expropriation. 

Article 64 of Chapter 573 of the Laws of Malta species that owners can submit an application to the board to obtain compensation for land that has been expropriated. This compensation must correspond to the land’s value at the time of its expropriation. The said claim must satisfy the following criteria; (i) The expropriation must have been declared before the Government Lands Act came into force (ii) The Government must currently posses the land (iii) The Claimant must hold a legitimate title to the land and (iv) The absence of an agreed upon compensation.

Article 68(2) of Chapter 573 of the Laws of Malta imposes a time limit within which, if the authority fails to decide in relation to the expropriated land prior to the 24th of April 2027, then the said land will be presumed to have been renounced. The standard rule revolving around property acquired under public tenure stipulated that after 10 years from the said acquisition, any land held through this tenure will automatically expire and will be returned to its original owners. This unless, the Land Authority acts in order to transform the tenure into a different title. 

Furthermore, Article 68(3) of chapter 573 outlines the scenario in which the Lands Authority decides to acquire property. In this evening, a presidential declaration will be made in accordance with the provisions of Articles 38, 52, 53, 54 and 55 of Chapter 573. As a result, this acquisition will be treated as a new request and the land’s value will be appraised as of the current date, including the entitlement to receive interest.

A notable case concerning public tenure under article 68 of Chapter 573 of the Laws of Malta is the case of ‘Dr Francis Lanfranco et al. vs The Lands Authority’ (2022) Ref. 08/2019. In this case, the petitioners requested that the Lands Authority fully purchase their properties, offering fair compensation in return. Their claim was based upon Article 69 of Chapter 573 which references sub articles (3) and (4) of article 68. Upon reviewing the evidence at hand, the Board observed that the said properties had been obtained through possession and use back in the year 1961, thereby exceeding the 10-year period specified by the new legislation (ie. Chapter 573) In this case, the board issued an order for the authority to proceed with the acquisition of the said lands through absolute purchase, and this as stipulated in article 69(1) of chapter 573 of the Laws of Malta. Additionally, in accordance with article 68(3) the court mandated that the authority publish a declaration from the chairperson of the board of Board of Governors of the Land Authority, and this as required by Article 38 of Chapter 573 within 3 months following the issuance of the said order.

In conclusion, the issue with public tenure under the previous legislation (Chapter 88 of the Laws of Malta) was primarily the fixed compensation awarded, which took the form of an invariable recognition rent. However, under the new legislation, specifically Article 68(3) of Chapter 573, when the Lands Authority opts for acquisition by title of absolute purchase, the land’s value is assessed as of the declaration’s publication date, including the entitlement to interest.

A significant change brought by the new law is the valuation of the entire land, rather than just the residual real right. This shift was evident in the case of ‘Melina Micallef v. Kummissarju tal-Artijiet’ (2016) Ref. 23/2011/2, where the court, adhering to the old law, determined that only a portion of the ownership rights was being transferred, not the entire land. Such a situation would not occur under the new legislation.

For more information or assistance please contact Dr Robert Tufigno and Dr Delilah Vella.  

Disclaimer This article is not intended to impart legal advice and readers are asked to seek verification of statements made before acting on them.
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