Emphyteutical concessions which lie beyond the prescriptive period : should the notary assume the responsibility of tracing its conditions?

Abstract

‘Notaries must act suitably and constructively in the discharge of their duties; they must inform and advise the parties as to the possible consequences of their instructions, having regard to all aspects of normal legal procedure for which they are responsible.’ This paper shall be examining some of the conditions laid down in deeds of emphyteutical concessions and shall then refer to local judgements to support the arguments brought forward. In order to do so, the author shall be adopting a desk-based approach which will allow the author to be as objective as possible when conducting the research. The first chapter shall be defining emphyteusis and its distinct characteristics as a real right. In introducing the deed of emphyteutical concession, this paper shall delve into the three main categories of clauses contained in such a deed, namely, payment obligations, conditions and servitudes relative to the property and events of default. An important topic which shall be addressed in this regard is the difference between the redemption of ground rent and the purchase of the directum dominium as well as their implications at law and how these impact the emphyteusis in question. The second chapter shall be first examining Article 12 of the Examination of Title Regulations and how it changed following the amendments and it shall then move on to discuss the different prescriptive periods at law, namely, the ten year, the thirty year and the forty year prescriptive periods. Reference to Chapter 296 of the Laws of Malta will also be made so as to distinguish between land registration areas and non-land registration areas. In the exercise of his duties, the notary shall respect the values of honesty, integrity and diligence as reference to the Notaries’ Code of Ethics will be made. The third chapter will seek to address the questions brought forward throughout this paper by making reference to local jurisprudence whilst analysing the possible pros and cons of the current legislation as well as any possible amendments which one may consider.