‘Lease, Locazioni and Kera’: Merging Legal Concepts in Postcolonial Malta
Diffusion within the Maltese Jurisdiction
This chapter explores an example of internal diffusion, in which legal concepts have migrated from one sector to another of the Maltese legal system, leading to a merging of civilian, common law and indigenous concepts of rent law, which reflects a rare moment of political consensus in Malta following independence from Britain. As an example of internal diffusion within a small mixed jurisdiction, it serves to problematise and challenge many of the orthodox assumptions about diffusion which were critiqued by William Twining in a leading article on the topic.1 Specifically, Twining invited legal scholars to consider how diffusion may operate outside and beyond the framework of a standard colonial and neo-colonial context, where the sources of importation of legal concepts are diverse and where diffusion can occur horizontally and across levels of ordering. He also showed how diffusion may occur through complex and indirect pathways which bypass the legislator, for instance via a judicial decision or even more informal routes. Agents of diffusion can be jurists or legal elites, not necessarily governments and the process of reception may be a long drawn out process which belies imperialist ‘top down’ models of transmission and transforms the legal concepts involved in the process. We shall see how most of these features of diffusion can be exemplified by this Maltese case and we shall focus particularly on:
how importation of and resistance to foreign legal ideas, laws and institutions often forms part of some broader local political struggle.2
The British, that assumed de facto control of the Maltese islands in 1800,3 tried for a long time to introduce elements of their language and culture into Maltese society. This process of cultural exportation, however, encountered strong resistance, especially due to the fact that the alert Maltese political class had been advocating autonomy since the very advent of the colonisers. Consequently whatever was Anglo-Saxon in nature was held to be both alien to Malta as well as threatening to its identity.4 The spirit of the times is best summed up by Fenech:
As for Maltese ethnicity, the vanguard of the Maltese political and educated class placed its locus in “Latin Europe” and did everything they could to hold it there.5
The Italian-speaking law courts, therefore, represented an eminent symbol of Maltese resilience and most of all the hub of the nationalist sentiment.
The Origins of Tenancy Law
Until 1925, rents had been regulated exclusively by the liberal provisions of the Maltese Civil Code.6 In fact, despite decades of colonial rule, the Maltese system remained firmly rooted in the civilian tradition and, as underlined by Attard, it was, ironically, the British colonial administration that introduced the first Civil Code of the island.7 The process of codification in fact reached its culmination with the enactment of Ordinance VII of 1868;8 the new code was largely based on the Jus Commune and the Code Napoléon along with other continental codes and prominent juridical opinions.9 The specific provisions on leases (locazioni)10 had been previously introduced through Ordinances I, VII and XI of 1857.11
The enactment of the first special law on leases arrived during a very promising moment in Malta’s history. The Maltese had, in fact, just obtained an unprecedented degree of autonomy from the British colonisers and, as of 1921, all internal matters had fallen under the responsibility of an elected bicameral Parliament consisting of a Legislative Assembly and a Senate. The implications of the new scenario were that Maltese politicians had to amplify the political scope of their activities beyond the constitutional aspect. The plight of the tenants was brought to the fore by the Labour Party (LP) that, in turn, counted on the lower, vulnerable classes for electoral support.
As documented above, when the first rent control measures were introduced in 1925, tenancies had not known regulation for over 100 years. Until the housing crisis felt in the aftermath of the First World War, there was a certain complacency regarding the housing situation, probably stemming from the belief that if left alone, the market would provide adequate housing.12 This changed soon after the introduction of self-government when the local administration was suddenly faced with a waning supply of dwellings and a mounting anxiety that landlords would exploit this tight situation.13 Landowners formed a key part of the electorate and the membership of the major political parties and they were hostile towards any legislation that aimed to cap their profits or limit their absolute rights to property. The LP had, on the other hand, been advocating the enactment of a regulatory bill as early as 1921.14 After a first failed attempt that was met with considerable scepticism on the part of the local legislative body, a second bill was approved in September 1924; not because the Assembly had become suddenly convinced of the impending need to safeguard tenants but rather as it was the price the MLP had put on their vote of confidence to the government.15
Despite superseding the Civil Code, this new rent law still remained true to civilian concepts. The author of the first draft legislation (that was dropped by the Assembly), Pier G. Frendo, had both quoted the German Civil Code16 and declared the influence of Italian legal decrees on the Maltese Bill;17 specifically the Italian laws No. 477 of 18 April 1920,18 No. 331 of 3 April 1921,19 and No. 1561 of 8 November 1921.20 Upon closer examination of the latter Italian texts, however, one instantly perceives a certain severity – some clauses even prohibited the landlord from terminating the lease unless he could prove that he needed the premises for himself or that he was demanding them back due to some other grave reason21 – and such provisions would never have formed the object of a consensus in the particularly bourgeois Assembly of Malta. Other Italian notions that Frendo had included in the first Bill were, however, taken up, such as the setting up an Arbitral Commission responsible for matters of increases in rent,22 and proposed afresh in the second Bill.
The Control of Rents of Immovables Act23 was therefore the first rent law to be passed by the Legislative Assembly. In comparison to the previous Bill, which had remained on the drafting board, this law contained significant concessions to the demands of the more conservative party in power. Clauses that had been included by Frendo in 1922, such as those guaranteeing security of tenure, had been abandoned and instead the new Bill sought only to protect tenants from excessive rents. The law, in fact, gave tenants the right to take any claim regarding orders of eviction, notices of rent increases or changes in conditions of tenancy to the newly set-up Arbitral Commission. The purpose of this body was to decide on extensions of tenancy and fix a reasonable rent for a maximum of three years – which was the established lifetime of the Act. The latter aspect is important since it effectively meant that tenants would only be given a fixed extension and they would not be guaranteed permanent security of tenure. The Act was in general very lenient with the landlords, especially when considering that elsewhere, in England24 and Italy25 increases were being capped. A new provision sought to introduce some protection in that unless the proprietor gave one month’s notice26 to the tenant through an official letter, renewal would have taken place tacitly, based on exactly the same conditions of the previous agreement.27
Therefore it emerges how, even at this stage, it was Continental sources that were relied on in drafting Maltese rent legislation. In the United Kingdom, in fact, the concept of a specialised adjudicatory body would only be given due consideration after the end of the Second World War,28 when the actual Rent Tribunal, regarded as an instrument of price-fixing, came into force through the enactment of the Landlord and Tenant (Rent Control) Act 1949.29 The British seemed to have resisted this idea of arbitration because of the fear that these tribunals would have assumed competences which were not lodged in their hands, thus encroaching on the powers of the ordinary courts. It is interesting how Frendo, in the presentation of his first Bill in 1922, had shown a similar concern regarding a specialised ‘tribunal’ (in fact the term he had used in the Bill was ‘Commission’), since he claimed that modern procedural law was against the establishment of such bodies. The Arbitral Commission, however, proved to be particularly successful and its status was soon raised to that of a ‘Rent Regulation Board’, just four years later in 1929. It would eventually be granted a wider competence through the Rent Restriction (Dwelling Houses) Ordinance30 of 1944.
Act I of 1925 was renewed for another term in 1927 through the Re-letting of Urban Property Continuance Act and then replaced by the Urban Rent Regulation Act of 1929.31 This new rent law followed the general lines of the first one, but it brought about a significant increase in tenants’ rights. First of all, it provided for the establishment of a Board that could permit, and establish, an increase in rent in the case of properties where the landlord needed to carry out major structural repairs at his own expense. Moreover, the lessor needed prior permission from the board in cases of eviction, and he could only avail himself of three grounds for this: default in payment, non-observance of any conditions or the need of the property for himself or for his immediate family. The Act was effective until the end of 1933; therefore, once again, the law limited its protection and fell a step short of ensuring permanency of tenure. Despite not having based themselves on the English texts, the Maltese Members of the Assembly were nevertheless very much aware of what was happening in England. In fact, whilst Malta was tightening its control on leases, in the United Kingdom the trend was completely the opposite since rent control had hindered the construction industry significantly.32 This point was even raised by Prime Minister Gerald Strickland in one of his speeches to the Assembly.33
The Colonial Intervention
The first stint of Maltese self-government was short lived and following a row between the governing party and the Church in 1930, the Constitution was suspended. This effectively meant that all internal matters reverted to being under British control. Interestingly, one of the laws which was retouched by the Governor during this brief period34 was the rent law. The Re-letting of Urban Property (Regulation) Ordinance35 was enacted through an Order-in-Council36 with the specific aim of ameliorating the functioning of the 1929 Urban Rent Regulation Act. This legislation represented a step backwards in what concerned tenant protection and this was probably owing to the decontrolling trends that had developed in England following the first bout of post-war rent control measures. In fact, the calamitous effects of these restrictive provisions on the English housing supply had already given rise to the Rent and Mortgage Interest Restrictions Act 1923 and further decontrol subsequently would take place through the Rent and Mortgage Interest Restrictions (Amendment) Act of 1933.37 Article 7 of the Re-letting of Urban Property (Regulation) Ordinance, for instance, was amended to lay down that unless the tenant replied to the lessor’s official letter within 15 days, he would have been considered to have accepted any new conditions of the tenancy proposed by the latter.
This move meant that the British had intruded in the Maltese legislative sphere and their intention to introduce Common Law concepts emerges clearly in the Explanatory Report of the Ordinance where it was further explained that ‘the rights and duties of landlord and tenant during the lease (be this an agreed lease or a tacitly renewed one) [were to be] governed by the Common Law’.38 This particular phrase clearly indicated a certain tactlessness towards Maltese nationalist sensitivities, although it could arguably have been interpreted to cover Roman law, understood as the Common Law of Malta and it probably reflected the new Governor’s lack of preparation on local matters. When this Ordinance was enacted, on 19 June 1931, Sir David Campbell had only been in office for a fortnight39 and this note appears to have gone unnoticed.
The revocation of the Constitution40