An analysis of the current compensation criteria for property expropriated by title of possession and use and public tenure

Abstract

Article 321 of the Civil Code (Chapter 16 Laws of Malta) underlines the notion of expropriation and holds that a person may only be compelled to surrender his property or to allow any other person to make use of such property where there is a public purpose and fair compensation is paid. In this dissertation, there will be a comparative analysis between the compensation criteria as they subsisted under the now-repealed Land Acquisition (Public Purposes) Ordinance (Chapter 88 Laws of Malta) and the recently enacted Government Lands Act of 2017 (Chapter 573 of the Laws of Malta. The purpose of this study is to identify whether the unfair situations created by Chapter 88 were addressed by the new law and whether the latter provides a better alternative in terms of compensation for owners whose land had been taken by title of possession and use or by the title of public tenure. The jurisprudence referred to in this study will deal with the pre2017 situations as well as the present situations under the new law. The sections of this study will be split into how compensation was given in cases where land was acquired by the title of possession of use and the method of calculation under the old law and the new law. The same will be done for those situations where land was acquired by title of public tenure and the final section will deal with a series of cases that ultimately lead to the landmark European judgement of Carmelina Micallef v. Malta decided by the European Court of Human Rights.