Instances of Legal Action in Real Estate
In this Article
Legal Action in Real Estate
What sort of situation would require legal action in real estate in Malta? The truth is that there are many. In this article we give a hypothetical situation in which one might find themselves in need of legal assistance. Apart from discussing the possible instances of legal action, we also provide legal expertise in giving answers to potential legal questions regarding real estate in Malta. You can find your tailored legal assistance with Michael Kyprianou Advocates and Legal Assistants - contact us on infomalta@kyprianou.com or phone +356 2016 1010.
Hypothetical Situation
Legal Action in Real Estate
Let’s take the following hypothetical situation regarding legal action in real estate in Malta. Mr Smith, a retired and recently-widowed pensioner, has lived his entire life in the family home he inherited from his parents in Rabat. He decides that the house is now too large for his needs, and wishes to demolish it and build a block of four apartments. This would be a perfect arrangement for himself and his three children, since he would keep just one apartment for himself.
Mr Smith discusses his plan with the family, approaches an architect, and draws plans from which he can turn his dream into a reality. At this stage however, it is crucial that someone can guide Mr Smith through the probable labyrinth of legal aspects he needs to overcome prior to starting work. The architect, all in all, has the responsibility to ensure that a structurally-sound building is designed, and eventually built, but the buck stops there. One needs a keen mind and fact-based knowledge on the law.
To start off, the procedure for submitting any application to the Planning Authority (PA) in Malta is complex. It requires, amongst others, adherence to parameters which vary depending on the locality, the urban design parameters, the policies regulating height limitations, and the spatial strategy in areas outside development zones. The parameters are clearly set in the Development Planning Act as well as the Subsidiary Legislation ancillary to the Act.
Second, there is always the huddle of objections. To continue with our hypothetical, let us say that Mr Smith, after weeks of consultation between family members and the architect, has the plans drawn and finalised. After paying a substantial fee to both the architect and the PA, the plans and a full (major) application for demolishing and development are submitted to the PA. Within hours, let’s say, Mr Smith and the appointed architect receive a receipt of the submission with an encouraging note that the submission will be considered by not later than 100 days.
Here is the crux; prior to the appointed date for the first hearing, Mr Smith receives a string of objections, namely from neighbours, the Superintendent of Culture and Heritage (SHC), the Occupation Health and Safety Authority (OHSA), as well as another ‘unknown’ person.
The neighbours have brought a list of grievances as to why they believe that the building should not be demolished. For the SHC, it is rather the cultural sensitivity of Rabat that is the issue, and they thus request supervision on any demolition and excavation . The OHSA simply requests a certified overseer, and finally, the unknown entity has a strong aversion to the property being demolished due to the fact that there is unverified evidence that the site has historic relevance. In reality, all these people and entities are within their right to file their objection. All are permitted by law, including the unknown entity who has no juridical interest in the property, to exercise this right.
What an Expert Lawyer in Real Estate can do
Legal Action in Real Estate
This is not a far-fetched scenario, but the reality of developing property in Malta. At this stage, what can Mr Smith do? There is little the architect can do legally, and Mr Smith himself may not be as versed in the law as the situation requires. Consultation with a lawyer is essential, and it would have probably been better if this had happened earlier in view that a knowledgeable lawyer could foresee such a situation and pre-emptively prepare Mr Smith for the occurrence.
In fact, consultation with a specialised lawyer in Malta could save plenty of time, expenses, and drastically diminish the chances of disappointment. Real estate in Malta has long been a pillar of both the economy and social mobility, and having an expert property lawyer in Malta would be highly recommendable when carrying out projects of your own.
Here are some examples that any specialised lawyer should be aware of when advising on real estate in Malta. For starters, when submitting an important and complicated application, it is advisable to do a “summary application” with the PA, rather than an immediate major application. A decision on a summary application is not a PA permit but it is rather a green or a red light as to whether such an application would be considered at all. The cost is minimal, notwithstanding that full architectural plans must be submitted.
Using this tactic ultimately means less fees if the project is given a red light, since when submitting a major application directly, the fees that the applicant pays are partially forfeited.
Second, if we go back to our hypothetical, an expert lawyer in property in Malta would underline that Mr Smith is proposing a new family home, not a commercial entity. The difference is that a commercial property would certainly entail further oversight by entities, such as the National Commission Persons with Disability (KNPD), to verify that there is access for all, in a public place, together with access to the EneMalta Corporation. On the contrary, this situation is rather a simple development of a person who would like to regroup his family in his ancestral home.
Third, Mr Smith would have been better-represented if he had an expert lawyer, as well as the architect, present at the first hearing in front of the PA Board. Additionally, an expert lawyer may preemptively request the presence of the following bodies as observers should they be deemed to be interested parties:
National Commission Persons with Disability (KNPD);
(ii) The Superintendent of Cultural Heritage;
(iii) Occupational Health and Safety Authority;(iv) Transport Malta;
(v) Malta Tourism Authority;(vi) Water Services Corporation;
(vii) Civil Protection Department;(viii) Enemalta Corporation;
(ix) Any other government department, entity, authority and any other non-government entity indicated by the Minister from time to time.
It is very uncommon for the PA to reach a decision on the first hearing. It is usually mandated to a later date after time for considerations. During this time the applicant - with the help of his lawyer - has the opportunity to review their position. Thus considering the objections which may be rebuttable, compromisable, or downright non-negotiable. A downright non-negotiable issue could be, for example, a height limitation issue (let’s say if area height limitation is three-storeys and the proposal is for four storeys).
It is not uncommon for applications to be shot down due to considerations that appear arbitrary to the applicant. Applications in full conformity with the law have been refused on the basis that the board feels that they will compromise the visual impact of the street in general. But an expert lawyer in real estate in Malta knows that the applicant has the right of recourse in such a situation. Maybe one can find a similar building across or down the road?
The applicant also has the right to appeal to the Environment and Planning Appeals Tribunal (EPRT). The EPRT is a quasi-judicial tribunal which oversees both the decisions of the PA and those of the Environment and Resources Authority (ERA). It reviews applications both on points of fact as well as on points of law. It may thus evaluate whether the refusal on the basis of negative visual impact is reasonable, whilst considering identical buildings in the area as a point of fact. It may also consider whether an objection from the KNPD is legally correct.
Should the outcome from the decision of the EPRT be another refusal, an expert lawyer in Malta should know that the applicant is still allowed one final right of recourse. Under Maltese Legislation one can appeal the decision of the EPRT, which is a quasi-legal entity, to the judiciary, namely by filing a plea to the First Hall of the Civil Court. Pleas to the Civil Court in real estate normally occur on the basis that the decision has infringed on the applicant’s legal rights. A practical example of this would be a refusal that is based on parameters of elevation, or access, when the proposed is a residential property and not a commercial property.
Knowing your rights as well as your limitations at law, at the outset, particularly when you are required to make financial commitments, are at best the minimum requirements to avoid serious arbitration from lack of information. That is why Micheal Kyprianou Advocates and Legal Consultants would strongly advise anyone to seek legal assistance before proceeding with any major real estate development or project.
We Can Help!
Why Choose MK Advocates and Legal Consultants
Michael Kyprianou Advocates and Legal Consultants is a firm that has garnered a wealth of knowledge and extensive experience in real estate transactions right here in Malta. Our lawyers and strategic consultants are able to offer advice on various real estate projects, acquisitions, sale and lease that include but are not restricted to commercial, residential or industrial properties.
In addition, we are also able to offer consultancy on residential, tourism and industrial real estate developments as well as offer guidance with regards to government-related procedures and permits.
The content of this article is valid as at the date of its first publication. It is intended to provide a general guide to the subject matter and does not constitute legal advice. We recommend that you seek professional advice on your specific matter before acting on any information provided. For further information or advice, please contact infomalta@kyprianou.com or telephone +356 2016 1010.
