A comparative analysis of pious burdens and different forms of ground rent in the Maltese legal system

Abstract

The focal point of this report is to comparatively analyse diverse forms of Ground Rent and Pious Burdens within the Maltese Legal System and take note of their similar characteristics as well as noteworthy differences. Moreover, given the intricate nature of the Notarial profession, the adequate understanding of these burdens is indispensable to safeguard clients’ interest and enable Notaries to adequately examine property root of title. The report commences by establishing an important common element between Ground Rent and Pious Burdens, this being their very nature as burden over immovable property, with the exception, as will be clarified in the first chapter, that Pious Burdens may attach to movable property also. However, an in depth assessment of these burdens exposes how their consequences at law differ significantly. Moving on to the sphere of their establishment, an important distinction between Pious Burdens and Ground Rent may be drawn up. While Ground Rent must be imposed by means of a contract ,taking the form of a public deed of emphyteusis, Pious burdens may be imposed by means of a contract but are often times established in wills. With this being said, a noteworthy common element does emerge in the fact that both form of burden are established by means of a Public tool at the hands of a Notary, albeit the information being made public at different times. Since both burdens concern immovable property, this public element is vital so as to adequately enable Notaries carrying out searches, to correctly assess what burdens in fact subsist. As will be explained in more detail, Ground Rent may take numerous forms, perpetual or temporary, revisable or non-revisable and may be expressed in monetary terms or take the form of payment in kind. On the other hand, Pious Burdens over immovable property have taken a different stand as they are often financial and while they may be created for a temporary period of time, the trend has been for these to be made in perpetuity with no possibility of revision. A perhaps striking element specific to Pious Burdens over Ground Rent is that in establishing a financial burden over an immovable property, the testator would often times specify the use of these same funds, referred to in this report as a Pious Obligation, such as to celebrate different types of masses, the lighting of candles as well as expenses in connection with feasts. It will also be noted that while in the sphere of Ground Rent, any natural or legal person, Government or Church/ Church institution may be a dominus, contrastingly a Pious Burden Beneficiary must necessarily be a religious entity or individual. In light of this, the Church State Agreement will be assessed and the implication of this Agreement noted as having had a considerable impact on the recipient of Ground Rent payments while leaving Pious Burdens unaltered. On a final note, and perhaps here emerge striking dissimilarities between Pious Burdens and Ground Rent, the process of redemption is reviewed. Ground Rent may be redeemed by means of a public deed drawn up by a Notary or a schedule of deposit made by an advocate, depending on the form of Ground Rent at hand and at specific rates described in this report. However, in the sphere of Pious Burdens one will note a more centralised system administered by the Archbishop’s Curia. Pious Burdens, unlike Ground Rent, may never be redeemed by means of a schedule of deposit, even though the terminology used by the Curia may give rise to confusion. Furthermore, the redemption fee is not prescribed by law per se and the deed of redemption may take the form of a private writing or a public deed drawn up by a Notary, with the latter attaining the same Public acknowledgement as a contract of Ground Rent redemption. It is for the reasons listed above and developed throughout this report, that a Notary exercising his/her function in the Maltese Legal System must keep abreast with the intricate characteristics and consequences at law, particular to different forms of Ground Rent and Pious Burdens, who share common elements as well as striking divergences.