Article 1554 of the Civil Code, Chapter 16 of the Laws of Malta, illustrates the obligations of the lessee, who is bound;
(a) to make use of the thing let to him as a bonus paterfamilias, and for the purpose stated in the contract, or, in the absence of any agreement to that effect, for such purpose as may be presumed according to circumstances;
(b) to pay the rent agreed upon, or fixed in accordance with the provisions established by law
If there is a breach of any of these obligations the lessor has a right to terminate the lease.
i) Non-payment of rent
In case of default of payment on the part of the lessee, the lessor has the duty to give notice via a judicial letter, and if the lessee fails to pay the said rent within fifteen days from notification, the contract can be terminated.[1] Tenants have sought to justify their failure to pay the rent in a timely manner due to a fault attributable to the lessor. This argument has been rejected by the court in the case of Abela vs Gauci[2];
“nonastante il–lokatur ikun naqas minn xi obbligazzjoni tiegħu… l–inkwilin li jibqa’ b’possess tal-fond ma jistax izomm jew inaqas il-ħlas tal-kera…”[3]
ii) Use of Tenement
This ground is of utmost importance and is catered for in article 1555 of the Civil Code, in fact, it was stated that if “the lessee uses the thing leased for any purpose other than that agreed upon by the parties, or … in a manner which may prejudice the lessor, the lessor may, according to circumstances, demand the dissolution of the contract”. For this reason, our courts have established two guiding principles. Primarily we see that a minimal incidental or accessory change in the use for which the tenement was let wouldn’t be enough for dissolution. Secondly, if there was a change in the use of the tenement of which the lessor was aware but failed to protest immediately, according to the cases of Cassar et vs Agius et[4] and Micallef et vs Muscat et [5], it would be considered as tacit approval.
In the case of Abela vs Micallef pro et noe[6], the second guideline was widened in order to provide that the non-use of premises would be considered to be a change of use; “failure to use the tenement for a period exceeding twelve months shall be deemed to be bad use of the thing leased in terms of article 1555”. The exceptions are listed specifically in the law as temporary absence is excused in case of work, study or health care. If the tenant has leased an immovable property as his ordinary residence and no longer uses it as such, then this would be considered as a change in use. Unlawful use of the premises is also considered to be a ground for termination as it can be of prejudice to the lessor.
iii) Caused damages
Article 1554(a) of the Civil Code highlights that the lessee shall make use of the immovable as a bonus paterfamilias. If the lessee is not diligent, he has a right to demand the dissolution of the contract. The damage needs to be ‘considerable damage’, and in such cases, the board asks for technical assistance to establish the damage and the cause for such. The burden of proof lies in the hands of the lessor, who has to prove that the tenant’s failure to take care of the premises as a bonus paterfamilias caused the damage.
In the case Frances Cassar et vs B and M Supplies Ltd[7] the court gave its interpretation of what considerable damages implies;
“Mhux kull nuqqas ta manutenzjoni adegwata tal fond tal inkkwilin… Il-ħsara trid tkun ta ċerta entita u mhux ta importanza zgħira…”[8]
iv) Transfer of lease or sub-letting
The lessor may request the RRB’s authorisation not to renew the lease if he can prove that his tenant has either sub-let the premises or transferred the lease without his express consent.[9] Article 9(a) provides that the consent of lessor to the sublease or to the transfer of the lease by the tenant must be expressed, however, the courts have also affirmed that clear and unequivocal circumstances or behaviour which clearly manifest the lessor’s consent also suffice. In the case of Ellul vs Buttigieg et[10] the Court of Appeal held that;
“hu bizzejjed li s-sid bid-diportiment (i.e. imgieba) tieghu ikun wera b’mod univoku li kien kuntent b’dak li ghamel il kerrejj.”[11]
This shall not be construed to be as advice but shall merely serve as a brief description of the grounds of termination of a lease. If you would like to get to know more about this please do not hesitate to contact us on [email protected].
[1] Article 1570 of the Civil Code
[2] Abela vs Gauci (Court of Appeal, 2nd August 1958)
[3] Ibid.
[4] Cassar et vs Agius et (Court of Appeal, 17th Dec 2005)
[5] Micallef et vs Muscat et (Court of Appeal, 19th May 2004)
[6] Abela vs Micallef pro et noe (Court of Appeal, 11th Feb 2004)
[7] Frances Cassar et vs B and M Supplies Ltd (Court of Appeal, 1st Dec 2004)
[8] Ibid.
[9] Article 9 (a), Reletting Of Urban Property (Regulation) Ordinance (n1)
[10] Ellul vs Buttigieg et (Court of Appeal, 12th May 1950)
[11] Ibid.