The Malta Independent 23 February 2024, Friday
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Court throws out Mark Gaffarena's human rights case for farmers eviction from Burmarrad property

Monday, 12 February 2024, 17:51 Last update: about 10 days ago

A human rights case filed by property speculator Mark Gaffarena, who was unable to evict a family of farmers occupying a rural Burmarrad property he had purchased due to a protected agricultural lease, has been dismissed by a judge who ruled it to be abusive.

Gaffarena, a well known property speculator, had acquired the 500-year-old Burmarrad farmhouse and surrounding fields, which had been cultivated by the Briffa family of farmers for generations, from the previous owner, Dr Giuseppe Attard Montalto, for just Lm30,000 in 2003. Gaffarena's architect had estimated the property to be worth €3.5 million at the time, the court was told.

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The plaintiff had told the court that he filed the case because he felt his rights were being breached by the low protected rent which the Briffa family were paying for the land and property. They did not reside there, he claimed, but in cross-examination, Gaffarena admitted that he had not spoken to the tenants before he filed the case, nor did he know what sort of agricultural activity they carried out.

Asked whether he had been aware of the fact that there were tenants occupying the property at the time he bought it, Gaffarena confirmed that he had been and that this fact was also reflected in the contract of sale. He also confirmed that had this not been the case, the price of the property would have been much higher. He had never carried out maintenance in the property, he said, in reply to another question.

The court also heard Malcolm Borg, who coordinates MCAST's agricultural centre and who also leads a farmer's lobby group, testify that only about 10% of farmers in Malta are the owners of the land they cultivate. The importance of the agricultural sector had been brought to the fore in recent global crises, which had demonstrated how Malta's food supply chain is under threat and had underlined the importance of a country's basic food supply.

The farmer who leased the 14-acre property, told the court that he had been living on the farm all his life and had raised his family there. He explained that in the past, Gaffarena had already filed two cases against the farmer's father before the Rent Regulation Board - the  speculator had lost one and ceded the other. Given that the farm had been built 500 years ago, it had been maintained in good condition, he added.

Ever since the land was sold to Gaffarena, he had been forced to deposit the rent in court, as Gaffarena had refused to accept it. He added that his only other property holdings were a 50% share of a 65 square metre apartment, which he had inherited.

In a judgement handed down on Monday, Mr. Justice Ian Spiteri Bailey observed that the facts of this particular case meant that the principles established by jurisprudence on what were once protected rents did not apply. 

Unlike the case law that he had quoted, Gaffarena was not the owner of a property who was forced, under threat of requisition, to lease the property to third parties, and neither was he a descendant of such an owner, as is often the case, said the judge.

"The court has before it today, a case where the owner was fully aware that the property in question was subject to a lease in terms of the Reletting of Urban Property (Regulation) Ordinance and the Agricultural Leases (Reletting) Act. So much so that the contract by which the applicant acquired the property, stipulates that [the farmhouse and fields were already leased to the Briffa family] and is being sold subject to the aforementioned agricultural leases."

The judge said that the upwards leap in the value of the property, as established by court-appointed experts, showed that the applicant company had acquired the property for a relatively risible price, precisely because it had been subject to a protected lease."

This motive had also emerged from Gaffarena's cross-examination, observed the court. "It emerges from his testimony that the primary goal or motivation behind the acquisition of the property in question by the applicant was precisely that of acquiring it for a price that was less than what it was really worth." 

Gaffarena had bought the property for Lm30,000, which equates to €69,881, in 2003, but a court-appointed architect had valued the property as having already been worth €1,029,398 at the time.

"A simple calculation shows that for the applicant's acquisition of the property, he had paid only around 6% of the true value of the property at the time. This means that the money he saved on the purchase price amounts to more than twice the rent that he would have received had the rent been paid at market rates."

The court also pointed out that in the four years since the case had been filed, two very important legal amendments had been introduced which put landlords in a much better position than that which they enjoyed in 2020, which Gaffarena could avail himself of today. 

"This Court makes it clear that it sees nothing wrong in fair property speculation. Having said that, this Court cannot ignore the testimony of the tenant Briffa, which has not been contradicted, who said that as soon as the applicant bought the property, he started to receive threats to vacate the premises. 

"This behaviour, by someone who thinks himself a cowboy, is not acceptable to this court, which can only condemn it. But this court will, in no way, allow that the primary factor which  makes the plaintiff's investment that what it is, be used in order for the plaintiff to receive further compensation from the State. Were the court to allow this, it would not only be permitting an injustice but would also be permitting an insult to society in general, that pays taxes for the best administration of public funds. This court certainly will not be allowing this type of abuse!"

The case was decided against Gaffarena, with the judge ruling that a speculative purchase of a property that is subject to a protected lease does not automatically make the purchaser a victim of a human rights breach. Finding no breach of Gaffarena's fundamental rights, the court dismissed the case, ordering him to suffer all the costs of the case, including the Briffas'.

 


 

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