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Taking back one’s Property: The Landlord vs the Tenant

by Dr Carlos Bugeja – Senior Associate

Suppose a property is leased to someone who has never paid rent, has broken most of the terms of the lease agreement, and has even abandoned the property he was supposed to be occupying as a tenant. Suppose the tenant is untraceable, or his whereabouts known, yet he refuses to hand back the keys to the property to the landlord. Suppose even that the period of the lease has expired, and the lessee just does not want to leave.

Can the landlord just change the keys to the front door, and take back his property?

The simple answer is: No.

The relationship between a landlord and his tenant may get complicated at times, and is often characterised by disagreements. But our law is built on good order and the sanctity of justice as the ultimate resolver of disputes, meaning that one cannot take matter’s in one own’s hand and not resort to court (or in this case, the Rent Regulation Board) on the basis of a pretended right. Indeed, even when the period of the lease would have expired, one just cannot chuck out the lessee without first obtaining the relative order of the Rent Regulation Board. In fact, the law does not take kindly to vigilantes, making behaviour on the basis of a pretended right a criminal act. In fact, article 85 of the Criminal Code states that:

“Whosoever, without intent to steal or to cause any wrongful damage, but only in the exercise of a pretended right, shall, of his own authority, compel another person to pay a debt, or to fulfil any obligation whatsoever, or shall disturb the possession of anything enjoyed by another person, or demolish buildings, or divert or take possession of any water-course, or in any other manner unlawfully interfere with the property of another person, shall, on conviction, be liable to imprisonment for a term from, one to three months.”

In fact, an exercise of a pretended right may also give the ‘victim’ the right to file an action in court for the restoration of the thing taken from him by spoliation. Article 535 (1) of the Civil Code states that:

“Where any person is by violence or clandestinely despoiled of the possession, of whatever kind, or of the detention of a movable or an immovable thing, he may, within two months from the spoliation, bring an action against the author thereof demanding that he be reinstated in his possession or retention…”

It seldom matters that the tenant would have been in breach of the lease agreement, albeit in a flagrant manner. That is a matter that always has to be decided by the competent court. It seldom matters that the term in the lease agreement would have expired. Indeed, even if the tenant ostensibly abandons his tenancy (and does not return the keys), one cannot just barge in and retake possession of the property. The law does not permit this.

One is increasingly finding clauses in lease agreements providing for a resolutive condition, that is for the termination ipso jure of the lease on the occurrence of one or more events. Some agreements even state that in these cases, the landlord is authorised by the tenant to change the locks of the premises without needing to seek authorisation from the Rent Regulation Board. Once again, these clauses have little significance in the eyes of the law. Even in all of these cases, there needs to be a decision by the Rent Regulation Board.

A look at article 1068 and 1069 of the Civil Code confirms this stance:

“1068. A resolutive condition is in all cases implied in bilateral agreements in the event of one of the contracting parties failing to fulfil his engagement: Provided that in any such case, the agreement shall not be dissolved ipso jure, and it shall be lawful for the court, according to circumstances, to grant a reasonable time to the defendant, saving any other provision of law relating to contracts of sale.

1069.(1) Where the resolutive condition, whether express or implied, relates to any case in which one of the parties fails to fulfil his engagement, the party who is the creditor in the undischarged obligation may, at his option, upon the accomplishment of the condition, either demand the dissolution of the contract, or compel the other party to perform the obligation, if this is possible.

(2) In either case the defendant may be condemned in damages.”

In either case, one cannot take matters in one own’s hands. One cannot arbitrarily declare that the lease is terminated, and change the locks.

The provisions of Chapter 69 (Reletting of Urban Property (Regulation) Ordinance) are yet another confirmation of this principle. Article 8 (1) states that: “Where the lessor desires to resume possession of the premises at the termination of the lease he shall apply to the Board for permission to do so.” Article 9 continues to state that even when the lessee would have failed to comply with the conditions of the lease, the landlord still needs to obtain the Rent Regulation Board’s permission for him to retake possession of his property.

In other words, where there is no consent by the tenant for the termination of the lease, the authority of the Rent Regulation Board simply cannot be evaded. Any act to the contrary may trigger a myriad of actions, including those of a penal nature.

Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Carlos Bugeja on carlos@abalegal.eu.