The effect of the Housing (Decontrol) Ordinance on temporary emphyteutical grants of dwelling-houses in the light of case-law

Abstract

The Housing (Decontrol) Ordinance was enacted by Act XIX of 1959. It was subsequently amended a number of times with the most important changes being effected by Act XXIII of 1979. The latter amendments had four main objectives namely: (1) The protection of tenants of decontrolled dwelling-houses from eviction at the end of the lease. (2) The regulation of other aspects decontrolled houses namely: (a) repair and maintenance, (b) lease of furniture, (c) payment of premium of lease of and (3) The alleviation from hardship of owners of old houses in need of repairs. ( 4) The "conversion" of the emphyteusis of dwelling-houses·, at its termination, into a lease or into perpetual emphyteusis, and the continuance of occupation of the house under such a lease or emphyteusis in return for a rent or ground-rent computed as indicated in the Act. The thesis will deal with the fourth above-mentioned objective. Prior to the 1979 amendments, an emphyteusis for a term exceeding sixteen years was not affected by the Rent Ordinances, and those owners who succeeded in taking back possession of old houses started to "rent" them on emphyteusis rather than on lease. They could therefore charge any rent they pleased, could exact a premium (on the grant of the emphyteusis and on every transfer thereof) and could take back possession on the termination of the contract. Moreover, as the Housing (Decontrol) Ordinance of 1959 considered the emphyteuta occupying these premises as owners, (the emphyteuta being for practical purposes the owner while he owns the tenement on emphyteusis), those dwelling-houses which were so occupied on the 10th of April 1959, could be decontrolled by the real owner as having been owner-occupied on that date. Therefore, the owner was given a two-fold advantage: while the house was on temporary emphyteusis it was not subject to the rent laws and because it was owneroccupied it could be placed beyond the reach of those laws by having the dwelling-house registered as a decontrolled house. In the case of houses which were not decontrolled or could not be decontrolled, the Government had the remedy of issuing a protective requisition order in favour of the occupier. But in the case of decontrolled houses, there was no remedy at all. The remedy to this problem was provided for by the 1979 amendment (Act XXIII of 1979) to the Housing (Decontrol) Ordinance with the introduction of what today is Section 12 of the said Ordinance.