Santa Marija Estate (Mellieha) clause unenforceable

The Civil Court has determined that a clause in the contracts for plots at Sta Marija Estate Mellieha, could not be enforced to reclaim the property as it did not preclude the property from being used by people other than the owners.
“This Court disagrees with the meaning of the clause as it was written. The house was being used for “private residential purposes” even if the person living there is not the owner. And there is no link between the house being used as an ordinary residence and as a private residence,” the Court, presided over by Mr Justice Joseph Zammit McKeon, said.

Silvio and Maria Isabella Borg were being sued by Albert Mizzi in the name of Central Mediterranean Development Corporation (CMDC) because the contract for their property in Sta Marija had a clause which said that it was for “private residential purposes only” but the Court said that this should not be interpreted to mean that it could only be used by the owner as a residence. It noted that the Borgs still used the villa in Mellieha as their residence.

The Borg family were given the option of paying Lm15,000 for the clause to be removed but they declined to pay. The amount has since been increased to Lm25,000.

In its ruling, the Court noted: “If the action taken by the defendants really did disrupt the harmony being sought by the company, the Court believes that no amount of money from the defendants would be able to compensate for the harmony desired by the company....”

The property was bought from CMDC in 1988, still in plot form. CMDC went to Court because they suspected, based on a report passed on to them by an unidentified person, that the basement in the Borgs' property had been turned into a flatlet and was being rented out.

The owners of Santa Marija Estate, CMDC, argued that the clause had been put into the contract in order to guarantee the characteristics of the area as a private residential estate. In fact, in the 1960s and 1970s, access to the entire estate was restricted to residents, by an access barrier.

The contract said the leasehold would be dissolved should the property owners fail to remedy any contravention within 3 months of being notified of it. CMDC had sent such warnings in 2004 and 2005, as well as through an official letter in 2006.

The Court noted that CMDC was unable to prove that part of the villa was being sub-let but that it was ultimately irrelevant to the case.

“Even if the property were rented (which did not result in this case) the fact that the property was being used principally as the ordinary residence of the defendants (as happened in reality) should invalidate any attempt by the company to ask for the revocation of the contract,” it said.

“…The spirit of the law is not to give an advantage to the owner which would allow him to profit from circumstances to prevent people from enjoying their property,” it said.

from di-ve news editorial September 29, 2009

Maltese property owner wins landmark European Court case over imposed lease

The European Court of Human Rights has ordered the Maltese government to pay compensation to a Maltese landlord who filed a complaint after Maltese law was changed, thus allowing his tenant to continue to live in his property even after a temporary emphyteusis expired.

Mr Philip Amato Gauci said his property rights were infringed as a result of the new law, which imposed on him a unilateral lease relationship for an indeterminate time without providing him with a fair and adequate rent.

He explained to the court that he owned a maisonette in Sliema which in 1975 was granted on temporary emphyteusis for 25 years for a ground rent of €210 per year.
But as a result to a change in the law in 1979, once the term of the emphyteusis expired, tenants were granted the right to retain possession of the premises under a lease, without the consent of the owner. The law did not apply for post 1995 emphyteusis.

Mr Amato-Gauci said he had been unilaterally deprived of his property without being able to have recourse to a court for a determination as to whether it was necessary for the tenants to retain the property or to establish just and fair lease conditions.

He also submitted that the tenant also owned other property, whilst he could not make use of his own property for his daughter, who was getting married.
The case was referred to the European Court of Human Rights after Mr Amato Gauci lost cases before the local courts, although the government submitted that not all local remedies had been exhausted.

The Attorney General also contested the assertion that there had been interference with the applicant's property rights. He submitted that the applicant's father (from whom Mr Amato Gauci inherited the property) should have known that at the time of the emphyteusis that the Civil Code and the applicable case-law had already determined that owners had to respect lease contracts entered into even beyond the period of temporary emphyteusis. In fact, the law only limited the already existent protection of tenants to Maltese citizens occupying the premises as their ordinary residence.
Moreover, the applicant had inherited an undivided half-share of the premises from his late father in December 1995 and the rest in 1997. Thus, at the time the applicant had acquired possession, the property was already governed by the new law.
Even assuming that there had been interference with the applicant's property rights, it had consisted of control of the use of property in the general interest, namely that of protecting the interests of tenants, the AG argued.

The European Court, however, found that Mr Amato Gauci had indeed suffered an infringement of his property rights when the new law imposed on him a unilateral lease relationship for an indeterminate time without providing him with a fair and adequate rent.
It therefore ordered the Maltese government to pay him €15,025 as pecuniary damage,€1,500 as non-pecuniary damage, and €3,500 in respect of costs and expenses.
Mr Amato Gauci was represented by Prof. Ian Refalo and Dr T. Comodini Cachia.

News report: Times of Malta, September 17, 2009

Betting on the future of online gaming

Editorial Times of Malta September 16,2009

(Note: The remote gaming industry is of particular significance to the maltese property letting sector.)

The future of the online remote gaming industry has been seriously threatened by a recent European Court of Justice ruling in favour of the Portuguese government's gaming monopoly and against Bwin, a major online Austrian gaming group that has a subsidiary in Malta.

The case was based on the contention on whether state gaming monopolies, in their pursuit to prevent crime, breach the EU's provisions on free trade in goods and services.

The judgement against Bwin confirms a previous sentence given by the ECJ in 2003 in the Gambelli case confirming that gaming state monopolies "can be justified only for reasons of public health or the prevention of crimes, like money laundering, fraud and game fixing". There are six other similar pending cases in EU courts. The outcomes of these cases are awaited with some trepidation by the online gaming industry.

Where does this leave the fledging and successful online gaming industry in Malta?
Malta accounts for 10 per cent of the online remote betting business. Employment in this sector is estimated to have reached 2,100 and is constantly growing, attracting many young professionals qualified in accountancy, risk management, IT and communications. It is indeed the rising star of the new economy industries that this country wants to foster.

The Achilles' heel of this industry is the lack of regulation that upsets many EU
state governments. In fact, Bwin has already lost a number of lawsuits in countries like Germany where the state and federal governments defend their monopolistic gaming rights with ardour. Whether this is done out of moral conviction to protect the perceived victims of gambling from exploitation and abuse by criminals is, of course, very debatable. What is certain is that this latest decision is likely to encourage more EU countries to invoke the ECJ judgement to protect their own betting industries as a matter of economic expediency.

However, the court's decision may not be the final word that determines the future of the remote online gaming industry. In fact, after giving judgement on this case, the ECJ invited delegates of other EU member states to make representations on a number of aspects that may lead to a compromise between state monopolistic rights and the promoters of the liberalisation of online gaming.

The proper regulation of this industry by the EU Commission would go a long way to ease the tensions brought about by this case. Governments do have legitimate rights to defend their citizens from criminals. But business entrepreneurs too have rights to provide a legitimate service to EU citizens who opt for such a service.
The main challenge facing Malta's online gaming industry will be the uncertainty that is likely to surround the business from now on. Getting EU states to agree on proper legislation to regulate the industry will not be easy because every state will defend its own vested interests.

Moreover, as the judgments in the pending lawsuits start to be pronounced, any further confirmation of the right of governments to defend their monopolistic gaming rights is bound to dampen any desire for further investment. The fact that the anti-gaming liberalisation lobby includes influential countries like France, Germany and the Netherlands makes the task of dispelling uncertainty even more daunting.
Malta's representatives in the EU governing bodies need to start preparing the country's case for the defence of this important industry.

Follow article link.

Investing in a low-interest environment

Letter - Times of Malta - Monday, 14th September 2009
Investing in a low-interest environment
Norman Mifsud, Madliena

In his letter Bonds Prospectuses, September 9, (click here to read) economist Karm Farrugia quite rightly tried to explain the terms used by issuers of prospectuses such as "unsecured" and "subordinated" bonds.

Few people except persons in the financial sector really understand the nuances and ranking of these bonds being issued. Investors are in most instances attracted by relatively high interest rates being offered without bothering to study the prospectus and the relevant risks involved.

Relatively high rates may appear quite attractive to investors in an attempt to maintain their level of income in a low interest rate environment.

Moreover, none of these issues or issuers is rated by a recognised rating agency. With the increasing number of companies taking advantage of the prevailing low interest rates offered by the banking sector it may be time for the MFSA to introduce a system to rate these bonds.

Judgment 'not so bad' for Malta - i-gaming

Note: Also refer to the Times of Malta news report dated September 09, 2009 (Ivan Camilleri - Brussels), available here. Both articles are included on this blog given the impact of the i-gaming industry on the property letting market here in Malta.

The judgment by Europe's top court last Tuesday giving member states the right to ban online gaming websites does not impact Malta's lucrative industry as much as it seems at first glance, the former CEO of the Lotteries and Gaming Authority believes.
Over the past few years, Malta has seen a surge in the number of online gaming companies setting up base here because of favourable legislation and operational conditions, including taxation. In fact, it is estimated that about 10 per cent of the world's remote gaming companies operate from Malta, with the industry directly employing about 2,100 workers.

The former CEO, Mario Galea, who is now an industry consultant, said that although the judgment needed to be studied properly, the bottom line of the European Court's decision was that member states had the obligation to protect consumers from the adverse effects of online gaming. In Malta, the authorities had foreseen this aspect and had drawn up safeguards to protect players and even invited authorities in other jurisdictions to follow suit. In this respect, Malta is at an advantage because it had already foreseen what the ECJ complained about, he said.

He said the ECJ ruling did not uphold monopolies in gambling but rather that EU citizens needed to be protected by their respective member states through the competent authorities and an effective gaming policy.

The ruling given by the Luxembourg-based court was over a dispute between Bwin, an Austrian-based betting company and the Portuguese soccer league on one hand and the Portuguese state betting monopoly, Santa Casa, on the other. Santa Casa had tried to break up a sponsorship deal involving the Portuguese soccer league that allowed Bwin to advertise its website to fans.

The ECJ ruled: "The prohibition imposed on operators such as Bwin of offering games of chance via the internet may be regarded as justified by the objective of combating fraud and crime".
But Mr Galea pointed out that Santa Casa in Portugal happened to be the regulator and an operator at the same time. This raised the question about whether the ruling was issued in its favour as a regulator or as an operator.
The ECJ's judgment in this sense highlights "a bad gaming policy in that country because you cannot possibly have a regulator that should be overseeing responsible consumption of gaming and, at the same time, justify economic benefits from gambling by acting as an operator".

When contacted, Unibet CEO Petter Nylander said the ECJ's statement that only a state-controlled monopoly could protect the customer "shows a surprising lack of knowledge on how licensed internet gaming companies operate.
"A competitive market has a regulatory and controlling effect between market operations and competition, regulation and control. Trust and security are key differentiators in e-commerce and high-end consumer protection is a top priority for all listed, transparent, private gaming operators," he said.

Commenting on the ECJ ruling, lawyer Silvana Zammit, head of the i-Gaming Unit of Chetcuti Cauchi Advocates, said that the general European principle of freedom to provide services anywhere within the EU could only be compromised when it was balanced against the benefits of the public interest.
Dr Zammit, however, said the term "public interest" was being used or misused widely and no parameters were set.

"The ECJ ruling definitely comes as bad news to the online gaming industry. EU-regulated online gaming operators are extremely capable of preventing fraud due to strict anti-fraud regulations applicable to them, which ensure a high level of transparency, integrity and traceability," she said.

Dr Zammit said that attention must be drawn to the vast number of European states in the process of reviewing their gaming legislation, with none of them choosing a monopoly-like setup to regulate their online-gambling market. "A monopoly is not the answer to prevent fraud; prevention can be amply achieved by proper regulation and supervision," she insisted.

Appeared in print, Times of Malta September 12, 2009.

Property prices drop but sales remain strong

Property prices continued to drop in the first three months of this year but were up by nearly 14 per cent when compared to the same period in 2007, which was considered by the industry as a good year.

The National Statistics Office said the prices of all properties registered a decline of 2.83 per cent when compared to the corresponding period last year.
The price of apartments dropped by 5.26 per cent while that of maisonettes dropped by 2.19 per cent.

Although the NSO figures showed that sales were down by over 15 per cent, industry sources said the decrease was more gradual than that.
Estate agents said there was a decline in sales to British customers, mainly because of the unfavourable sterling to euro exchange rate.

The estate agents said that they had seen a change in mentality by the sellers, who are now pricing their properties closer to the market value. Before, they would inflate the price, hoping to get more than what the property was worth on the market.
Moreover, they said there was a drop in the number of property speculators, who would buy property to sell.

With regard to renting, the estate agents said this was still strong although the Maltese culture of being a home owner was still as strong as ever. They said the renting industry was thriving because of the large number of foreign companies based in Malta, whose employees were renting property around the island.
Government statistics show that between January and June this year, 5,620 property deeds were registered. This amounts to 46 per cent of the 12,190 deeds registered in the whole of 2008.

Promise-of-sale agreements in the same period this year totalled 3,956, nearly half of the 8,188 agreements registered in 2008.
In the first half of this year, 1,520 apartments were sold, compared with 3,207 in 2008. Terraced houses sold in 2009 totalled 938, compared to 1,878 in 2008. A total of 147 penthouses were sold this year compared to the 326 sold last year. Maisonettes sold this year numbered 541 as against 1,168 in 2008.

The estate agents observed that apartments in shell form and houses of character saw the steepest drop in prices. One estate agent said that apartments in Attard were among the cheapest on the island due to the oversupply in that town after house owners decided to demolish their villas and build flats instead.

An estate agent said he witnessed a sudden increase in property sales over the past two to three months. "I saw an increase. I believe the property market has touched the bottom and now is the right time to buy and sell. There are some good deals out there. Prices in Malta have not plummeted that much, especially when compared to other countries, like Spain, which saw a drop in its property prices of 30 per cent, and Dublin, where prices are down by 25 per cent," the estate agent said.

Times of Malta - September 12, 2009 (Matthew Xuereb)

Sliema council objects to proposed changes at Tigne project

The Sliema council is objecting to the change of use of a tower proposed as a hotel in the Tigne Project to residential apartments.

In a statement it said it was objecting to this change of use since itwould result in overdevelopment in an already overpopulated area.

"This tower should remain a hotel as was approved in the Development Brief.
"The council is also conscious that such a height was permitted in the development brief due to the fact that such a hotel would generate more jobs and hence contribute to the island’s economy.

"The proposed change of use would also create a serious impact on the amount of traffic influx of vehicles coming in and out of this area.
"It is evident that there will be already a massive increase in traffic coming from existing residents, new residents, delivery trucks that will supply all the commercial and catering establishments (once in operation) along with the people who will come to shop or work in new offices.

"The daily traffic tailbacks will have a horrible impact on people’s health due to the emission of foul exhaust from idling vehicles, buses and trucks. The excessive strain on the already existing public services should also be taken into consideration," the council said.

It questioned whether there was a strategic traffic master plan for the whole of the Tigne peninsula and if the MIDI tunnel was approved by the ADT for two way traffic since this data would have to be incorporated in the strategic traffic master plan for the Tigne peninsula.

As for proposed changes for the development's T14 and T17 blocks, the council said it was also objecting since the changes would have a drastic visual impact resulting in horizon pollution.

"Higher buildings should be positioned at the back and not at the front.
"The proposed buildings rising to heights of 12 and 14 storeys will result in the degrading of Malta’s and Valletta skylines. Such a proposal would also set a precedent by allowing an increase of six to eight floors over an original outline permit.

"This may well be followed with numerous applications in the area for similar height increases. Moreover these developments on the peninsula give rise of concern to the environment: less light and more heat generated between buildings requires more energy for mitigation," it said.

The council said that if such a garden battery was so sensitive that it required no buildings to be built, it should be preserved without any condition. The building heights as approved in the development brief should also be respected. In a letter to the Malta Environment and Planning Authority, the council asked to be considered as an official objector.

Follow the article link.

NSO data issued today. House prices, sales decline

House prices dropped by 2.83 percent in the first quarter of this year, according to NSO data issued today, September 10 2009. (Download NSO data in PDF format by clicking here.)

The NSO said that the All-Property Price Index stood at 156.99, a decline of 2.83 percent compared to the corresponding period last year.

"This primarily reflected a decrease of 5.26 percent in the apartments index, and of 2.19 percent in the maisonettes index, compared to the corresponding quarter last year.
"However, when compared to the corresponding period in 2007, prices were up by 13.42 percent," the NSO said.

The All-Transactions Volume Index showed that the number of transactions in the first quarter of 2009 declined by 15.11 percent when compared to the corresponding period in 2008. This year's volume indices were also the lowest in the six-year period under review.

Follow article link.

Bonds prospectuses - Letter (Times of Malta)

Times of Malta - Letter to the Editor
Wednesday, 9th September 2009

Bonds prospectuses

Karm Farrugia, Madliena
The two current corporate bond issues describe them as "unsecured and unsubordinated". Previous ones having been "subordinated", there was obviously no point to mention "security" or its absence.
Not so with "unsubordinated", since this might well induce the ordinary investor to infer some kind of security. It always baffles me why prospectuses meant for public consumption use phrases which are beyond the public's comprehension. Why not just circularise them among the professionals and merely advertise their highlights?

Comments

Sergio Galea Vincenti
I share - totally - Mr. Farrugia's concerns: In my opinion, prospective subscribers to bond issues should always ensure they read the small print published in any prospectus and always ensure they get the right clarifications and advice before committing themselves to any subscription.

My concerns are that one day, we may be faced with serious repercussions as a result of possible non-fruition of certain projects. For example, subscribers to bond issues in relation to, say, property development projects should always ensure that all due permits are in hand and uncontested before committing their savings. This is just one example of possible issues which the regulator and financial institutions should carefully consider.

Risk is always a part of any investment endeavor: Carelessness or, worse, the omission of information is a much more serious issue.

We are lucky, in Malta, to have above-average diligence exercised by regulators and financial service operators. Let's ensure that this is enhanced by ironing out any gaps that might exist in regulation for the benefit of both investors and operators alike.

Note: Click here to see related Letter on Times of Malta September 14, 2009 titled "Investing in a low-interest environment" by Norman Mifsud, Madliena.

Setback to Malta gaming industry

Note: The folowing news report appeared in the Times of Malta, September 09, 2009 and is mainly of interest, given the real estate context of this blog, to the property letting sector.

Also of particular interest, is a counter-news report, appearing in the Times of Malta September 12, 2009 and also available on this blog in its entirety here.

Malta's lucrative internet gaming industry suffered a major blow yesterday after Europe's top court ruled that EU member states could ban gambling websites.
The judgment was delivered in a case filed by Bwin, one of the largest internet gambling companies in Europe with subsidiaries in Malta, against the Portuguese state monopoly.

Online internet companies across the EU have been fighting member states such as France, The Netherlands and Germany that insist on protecting their state monopolies to eliminate rising competition from online betting companies registered in other EU member states.

Yesterday's judgment, which can be interpreted as favouring state monopolies, sets back the hope of online companies of ensuring a free competitive services sector in the EU. The European Court of Justice (ECJ) ruled that countries could run state monopolies for online sports betting because of a heightened risk of criminal activity.

Over the past years, Malta has seen a surge in the number of online gaming companies setting base here because of favourable legislation and operational conditions including taxation.

It is estimated that about 10 per cent of the world's remote gaming companies operate from Malta, with the industry directly employing about 2,100 workers.
With yesterday's ruling, the industry could see its penetration dented in some of its most lucrative markets.

In fact, following the much-awaited judgment, the Bwin online gaming group, based in Austria, saw its shares tumble by 9.5 per cent.

The ruling given by the Luxembourg-based court was over a dispute between the Portuguese state betting monopoly, Santa Casa, on one hand and Bwin and the Portuguese soccer league. Santa Casa had sought to break up a sponsorship deal involving the Portuguese soccer league that allowed Bwin to advertise its website to fans.

The EU court yesterday said that "The prohibition imposed on operators such as Bwin of offering games of chance via the internet may be regarded as justified by the objective of combating fraud and crime".
Online gaming groups trying to open shop across the 27-country bloc are fighting several European countries in a number of legal challenges over domestic betting monopolies.

Bwin regretted the ECJ's decision and said it was unfortunate that the court did not recognise that commercial operators could combat fraud or take measures against addiction as well as state monopolies and that bans against legitimate operators would only boost a black market.
"The reality shows that internet state monopolies don't work," said Thomas Talos, a lawyer for Bwin. "We continue to fight for a regulated opening of the market. Bans don't work."

On the other hand, European Lotteries, the EU lobby group representing national lotteries, welcomed the ruling. "This strengthens the hand of national governments and lotteries in controlling what gambling take place on the internet," said Rupert Hornig, the group's EU representative.

Bwin and other online gambling companies vowed that the game is not over and pointed out that the scope of the decision was narrow.
They said the ECJ would still rule on several other gaming cases in the next few months, including disputes in Germany and The Netherlands.

Print Edition - Times of Malta September 09 2009 (Ivan Camilleri, Brussels)