In Session: Succession, Letting & Hiring Revision – Dr. Kurt Xerri x GħSL

[MUSIC PLAYING] Welcome to Garnado's session, the podcast designed for low students and legal enthusiasts, looking to deepen their understanding of key legal topics. Brought to you by Garnado's buckets, this platform offers insightful discussions and expert interviews on a range of legal subjects. Additionally, our revision-focused pod episodes creates an enclosed collaboration with INS cell are designed to support students preparing for exams. Whether you're studying or simply looking to expand your legal knowledge, Garnado's session is here to guide you through. I'm Averyl. INS says academic officer. And in the studio with us today, we have Dr. Kurt Sherry, who has kindly accepted to do a brief revision session for four years on low-of-succession. Thank you for joining us on the program today, Dr. Sherry. Thanks. It's my pleasure to join you. These revision podcasts are in no way a substitute for lectures, and nothing that's mentioned on the podcast will differ from what is discussed in class. However, the aim of these podcasts is to offer students an alternative platform and in medium in order to take their understanding and learning to the next level. During these sessions, we will try and summarize some of the main points and principles of low-of-succession and letting unhiring topics covered by Dr. Sherry and Dr. Peter Porchkostan C, as well as focus on a number of exam tips and strategies. Let's begin. So, introducing a bit of low-of-succession before we get into the technical rules. What exactly do we mean when we speak about the low-of-succession? So, succession is first and foremost characterized by the need to provide for the settlement of the legal positions of a deceased person. So, the question we're asking is practically, what happens to the legal relationships of a person once that person dies? So, practically, this exercise will involve the identification of potential successors. We need to identify at least one successor. And this process obviously can be done either, it happens either by law, in the case of a testate succession, where the deceased person dies in testate that is without having left or else, by will through testate succession. - Very well. So, students often hear about succession by universal title and also succession by particular title. Can you maybe tell us a bit the difference between the two? - This is one of the fundamental distinctions because, practically, this is one of the main elements that distinguishes transfers, cause some of this from transfers and tervi was. In succession, if we are leaving property by universal title, we are leaving the totality or the entirety of the patrimonial relationships of the deceased. Okay, so the entirety of the state. So, in that case, where we have transfer cause and mortise by universal succession, we have an error. As opposed to what happens when the thing left by will is a specific asset or a specific right. In that case, we're no longer talking about the entirety of the state of the deceased, but we're talking about specific assets, which we call legacies. So, in that case, we refer to the person as the legity. So, this is the first main distinction that we have to make because in the law of succession, we can come across errors as we can come across legacies. And that is precisely the distinction. Perfect. And how does succession differ from ordinary transfers of property between living persons? So, as I hinted to before, one particular aspect of the law of succession is that you can have a universal transfer. So, if you have an interview, what's transfer? If someone is going to transfer property by donation or by sale. In that case, you are transferring always by particular title. Succession, cause amorites, however, distinguishes itself because in case, of course, of a universal succession, you have the entirety of the estate, which passes on to the air. Of course, in succession, you can also have transfer by particular title in case of legacies. But for sure, in ter vivos, you cannot have the transfer of an entire estate. While in cause amorites, you can. Okay, and mentioning all these people, so airs, legacies, who are the key legal actors involved in succession? So, first of all, the key person is always the deceased, or the daqueus. So, going through notes or else, when preparing for the exam, and when answering the question, we always have to refer to the deceased or the daqueus. Now, where did the dequeus would have or the deceased person, would have left the will, we would call him or hear the testator. Okay, the testator, sometimes also the testator, if it's a female, but mostly we use the word testator. And then we have the prospective beneficiaries or the potential errors. Why am I calling them prospective beneficiaries or potential errors? Because even though they might have been designated as errors in the will, they would not become errors until they accept the inheritance. So, it is the acceptance of the inheritance, which then gives them the position of errors or even legacies as said before. Very well. Then when we speak about succession, what exactly is being transmitted? So, one very important aspect when covering succession is to distinguish, to distinguish between succession and inheritance. Why? Because they are too related, sometimes often wrongly interchanged, because they are not interchangeable, but which refer to different concepts. So, first of all, succession is the legal process of transmission of the estate. Okay, so in succession, we're talking about a legal process of what of the inheritance or the estate. So, the inheritance or the estate is the object of that succession. Okay, so we have the legal process, which transfers the inheritance of the deceased person onto the heir. Another important point is that in the law of succession, we're talking about assets or things which are capable of economic evaluation. Okay, so one distinction, which I, one other element, which I imagine has been covered even during the lectures, is that here we're extinguishing in succession, and personal rights, which are extinguished up on the debt of the person. And we're speaking about both movable and the move of the property. Both movable and the move of the property. Precisely. Right, so what are the main ways in which succession can arise? So, there are two sources. Okay, so one cannot get confused on this. The principle, let's say the more common one, is test state succession, because in most cases, people go to an alterie, as we know there are certain formalities associated to wills, which we do not have time to go into, but they go to an alterie, and unilaterally, unilaterally, declare the way in which they want their estate to be, to be apportioned after their passing. But then you also have in test state. There are some people who buy choice, sometimes because an unforeseen event happens, but you can have instances where a person dies in test state. And there, you have a particular situation in test state succession, where it is due law that determines how the estate will be apportioned among the people who might inherit. And the assumptions that the law makes, let's say, their base done an approximation of what the law itself presumes that the wishes of the deceased would have been. And in fact, in a test state succession, we determine the years on the basis of two assumptions. First of all, on the basis of the closest family relationships, it is the closest relations that inherit to the exclusion of more remote relationships. And secondly, we're also abiding by a principle, which, let's say, is also crucial in the study of the law of succession, which is the principle of equality and non-discrimination among descendants. So this is, in the case of in test state succession. When then you have test state succession, you have, let's say, a larger degree of freedom because the data stated, of course, has a rather significant degree of testimentary freedom, which is not, however, absolute. It is, in fact, limited by what? The limit imposed by Maltese law is the reserved portion. The reserved portion, which protects these surviving spouse and children or descendants. So it is only the spouse or the descendants who have, let's say, a portion of the estate of the deceased, which is reserved specifically for them. So we have-- a reserved portion and then we have a disposable portion. And with regard to the disposable portion, then the testator is free to dispose, however he or she wishes. So how does the law balance the freedom to dispose by will with the protection of family members? This is a crucial aspect because this is also, for example, one of the instances where we differ from English law. But in many civil law jurisdictions, even because of the due to to maintain close relations, we have the principle of family succession. So there is freedom to dispose of property by will, which is true to a very large degree, but then you have a portion which rests on the principle of family succession, which is intended precisely to protect those close relatives and the duty of the testator to maintain them even after his passing. Another concept students often struggle with is the rule of the UNICACARTA. What is its significance? So this is quite a fascinating concept. Why? Because it combines the principle of succession with that of contract. So succession, a will is conceived, let's say, in more common instances, as a unilateral declaration by a person. In fact, it is a unilateral elect. While a contract is the opposite of that, it is a bilateral elect, which necessarily involves two people. Now here we have two people agreeing, and very importantly under Maltese law, these must be spouses. It is a, let's say, a privilege only reserved to spouses where they come together and they dispose of their property together in the same act. Now, there are two contrasting concepts here. That of the revocability of wills, because in principle one should always be free to revoke a will he or she would have made previously. On the other, you have the binding element of a contract, which as we know cannot be revoked without the consent of both. So here in Unica Carta, it is for this reason that we have the concept of forfeiture. So what do we mean by this? We mean that a, a, a, a, an Unica Carta is revocable, is revocable even though, even though there is a contractual element to it. But if it is revoked, of course it will affect the, the one, the person, revocating the will, supposition when it comes to the inheritance of the other party. In fact, you might have forfeiture because if a party disposes, disposes otherwise, if a spouse disposes otherwise through a subsequent will before the demise of the other spouse, then you can have a penalty in the form of a forfeiture, if it is of course for seen in, in, in, in, in the Unica Carta itself, whereby the person revoking does not benefit from the will, Unica Carta, because he would have, let's say, withdrawn from his, from his promise. Excellent. Now having all this background information about what law of oxygen actually is, how, with a student actually approach and apply this information to an exam succession problem? So, what is absolutely crucial for a student to do when studying succession, but also especially when answering exam questions is to approach it through a very structured approach. Now, my, my, my suggestion, my suggestion is this, of course, my remains mostly a suggestion, but let's say there are three fundamental questions, which are asked in the law of succession and I think the format of the lectures largely reflects this, this structure. First of all, the first question to be asked is, if the testator had the capacity to dispose or not? So, if we're talking about testate succession, yeah? The first question to be asked is, could the testator dispose, did he have the capacity to dispose, were there issues, which maybe would have rendered the testator incapable? I don't know, mental capacity. For example, or whether he was affected by duress or fraud. Then, the second question to be asked, okay, we're moving sort of so, do one disposing by will, then the next day just we have to look at the person's receiving. So the second question is, did the designated successor have the capacity to receive? Okay, that's the second one. And where do these questions come up? They come up because there might be questions raised such as, for example, if the person the designated successor would be unwirty, for example, or if the same person would have been disinherited by the same testator. Now, upon having established these two questions, so established these two elements, if the testator had the capacity to dispose, and if the designated successor has the capacity to receive, at that point then we have to ask whether the dispositions of the will are indeed respecting the limits imposed by the law. So that is where we have to start computing reserved portions, especially in instances where the airs would not be the children of the deceased. We have to consider them the consequences of these, such as, for example, the abatement of excessive dispositions or, for example, collation among airs. And then you get into the more complex issues of whether accretion is taking place in the case of the premature demise of one of the designated airs substitution, if so instructed in the will. And then, of course, in the absence of all this because we are assuming that this is happening through testate succession, if not then we have to divide the estate through in testate succession because there would either be no binding will or else the will would have in some way lost its effect. So how does all of this actually help when answering an exam question? So my suggestion, therefore, is this. When looking at the exam question, the first thing to do is immediately to draft a family tree because practically that will be the first step. Now, the key to start answering the question. After drafting the family tree, which if we look at last year's past paper was even provided a very generic scheme was provided by the examiner, then we have to go through the question and then notate it step by step why because the paper in itself will contain very, very strong hints as to what the examiner would like you to address. Now, once then we have the annotations, then we transpose the annotations onto the family tree at which point then the answer should answer the, sorry, the family tree will answer the question by itself because at that point then what you have to compute is practically which shares go to whom, which legacy is go to whom. So but if the family tree is properly drafted and if the annotations are then properly transposed onto the family tree, the answer should be rather easy than to provide. Another thing, the difficulty of this exam, it's not so much in writing down the answer. In fact, it's not how long your answer is but rather how precise it is. So it's normal since it's just a one hour exam for students to take even up to half an hour before starting to write their answers. Okay, keep in mind here that what the examiner is assessing you on is your ability to properly assess the mechanisms of the law of succession. It's not so much. So you really, even if you mention, for example, by way of example, okay, if you are mentioning, if you are writing on the Unica Carta, you do not need to go into excessive length and explaining to the examiner your most extensive understanding of your Unica Carta. Okay, so because this is a case study, testing you, testing you on how the law would apply. So this is after, really and truly, a very short answer. Okay, it's not after an extensive answer. So you would rather take more time to, let's say, devise the family tree properly and notate several aspects which you think are of relevance and take time to think about how these come together and the results that they produce, rather than to hasten this process to then write longer answers which, however, do not earn you any additional marks. I don't know whether we can go into the question of last year. Okay, so we'll go. through it, sentence by sentence. Just to clarify the year of 2025. Exactly. We're talking about-- January, September. --of June. Of June. So we're talking about the PassPaper for CVL 4026 of June 2025. So we'll go through the question and we'll see how as we're going through the question, we can pick up elements which will then be extremely useful to bring our answer together. OK, so mellow. The family tree, first of all, it's provided in the question, Albert is the husband, Alison is the wife, and they have three children. Odette, we are told that she's married with one child named Mark. Then we have Paul, who is unmarried. And then we have Veronica, who is married with one child, named Antida, who is 20 years old. OK, so this is, of course, important because this is our starting point. Mellow. The question starts like this. So in 2018, Albert and Alison drop and Unica Cartel will. The first question, when we see Unica Cartel, that we have to ask, is it valid first of all? So was it drafted between two spouses? Most of all, whether they leave each other the greater part of the ownership of their property, because otherwise, it's not an Unica Cartel. That's another very important element. And thirdly, whether there is any condition in case of four features. So these are the first three things we have to think about. So in 2018, Albert and Alison drop and Unica Cartel will, whereby they leave each other all their financial assets, plus the use of fruct over their remaining estate. It's what is worth more, their financial assets, or the use of fruct over their remaining estate. This is a question we will answer later on. But it is something we need to determine from the start. OK, is the greater part of the ownership of the property involved in the inheritance or not? Mala. Moving on to the next sentence, they appoint their three children as universalers in equal shares with the right of substitution and the creation among them. They also insert a four-feature clause. So here you go. This is important for us. The insert of four-feature clause, which states that in the event of four-feature of the succession-- so in the case of one spouse revoking the will before the demise of the other spouse-- so in the event of four-feature, what would have been inherited by the defaulting spouse goes to their grandchildren. OK? Now, so the most important part here is that we pick up the necessary hints on the Unica Cartel and the conditions of four-feature. Why? Because it's also important to determine, since both of them are going to die, both-- sorry. This is a bit of a spoiler. But both Ellicin and Albert are going to die. So since both of them are going to die, we have to see whether revocation comes in or not. So moving on to the next paragraph. In 2020, Veronica separated from her husband and this very short of money. OK? This is starting sort of a sort of a headache that there's a problem with Veronica. She asks her father to help her out, but he refuses. Now, in an attempt to blackmail him, she tells him that unless he pays, she will file a report with the police alleging that he had molested her when she was a child, knowing full well that the accusation is totally false. The father, however, stands firm and so Veronica filed a report and the father is charged. She also abandoned her daughter, Antida, and started taking drugs and was living on the streets. The case was appointed for hearing in January 2021 and Veronica testified, inventing a whole story backing up her claims. Albert was so shocked by the story that his affair had emancipated, that even though all his efforts were made to save him, he passed away. Well, was the significance of all this? The significance of all this is that by charging her father with a crime, which is punishable with imprisonment. While knowing that he was innocent, of course, this is a case for unworthiness. So the most important thing to elicit from this paragraph is the fact that Veronica, according to the facts provided, there are all the elements in place for her to be considered unworthy to receive by will. All right? This should already alert us to the fact of what happens in the case of unworthiness, OK, because in case of unworthiness, but we'll come to it later, what happens is that she was survived by-- she survived. Here, when Albert will pass away, he will be survived by both Veronica, who will be considered unworthy, as well as her daughter, Antida. So what are the rights of her daughter, if Veronica's considered unworthy? And the answer is that Antida will be entitled to the reserved portion. Now, a very important detail here in the third paragraph, the community of aquists, of Albert and Ellison, consists in financial assets worth 500,000, and a small flattened above worth 150,000. All right? Now, following Albert's debt, the bank accounts were transferred to Ellison's name. Well, what happened here? Very importantly, we know through this statement that when they left each other, the ownership of their financial assets and use of fructover their remaining property, since the financial assets composed the greater part of their property of the community of aquists, then the Unica Carita stands. OK? Because the use of fructover over the flat-- in this case, the flattened question is worth 150,000. The numbers are significant, because this is how we determine that the Unica Carita in fact stands. It is valid, because they did leave each other the financial assets, and financial assets in this case consisted in they were worth more than the apartment over which they left each other only the use of fruct. OK? Mellow. That is something that's also another relevant element. Now, fourth paragraph. After the father died, the mother-- the Wenezini Verre said about the loss-- eventually started to get back on her feet. And about a year later, after joining a counseling group organized by the parish, she met George, who was also with the-- who was also with the wearer, and they hit it off. Within a year, they were living together in January 2024. And in January 2024, they got married. OK? So why is this important? It's important, because of course, now we have to amend our family tree when it comes to the demise of Ellison. And what did Ellison do? Ellison made a new will, leaving Hermannito George, and leaving him also the use of fruct of the flat in Amabba, making no mention as to whether it belonged to her or not. Now, this is also not an irrelevant redundant detail. Why? Because here we're talking about the legacy, the use of fruct of the flat in Amabba. And she made no mention of the fact of whether it belonged to her or not. But did the flat in Amabba belong to her? No, it didn't. Because half of it, after their demise, after her demise, would have been inherited, would have been passed on now by her three children, the years designated in the previous Unica Cartagel. So the one half owned by Albert would have been passed on upon her demise to her children. So it was only within her right to transfer the use of fruct over half a share of that property. Which means therefore that here, we know already from now, that's perhaps the fifth element we can draw from this case study, that there's an issue possibly with Elagato because of Altrue, because she's leaving property to George, which is not entirely hers. But in the meantime, she's not declaring in the will that she is aware that half of that property, after her demise, would not belong to her. Now, she appointed Paul Odette and Antida, as university layers, and he will share with the right of substitution in the creation among them. She stated that she appointed Antida instead of Veronica because of the lifestyle Veronica was leading. Now, why is this important? She's disinheriting Veronica. Can she do so or not? That is, of course, a question we need to answer. And finally, the last paragraph, which, let's say, is of significance to us, is Paul had left Malta and went to Iraq in 2015, when he was 18 years old and never returned or made contact with the family. All attempts by the family. to trace him rendered no results. No, but he couldn't form the family. He was very about him, whether he was still alive. Now, this perhaps was the most difficult passage of all, okay, because why are these details given to us? Well, we know that Paul, the last time Paul was contacted or when the family had lost news of him was in 2015. Now, considering this question came out in 2025, we have a 10 year gap. Now, this 10 year gap is relevant because according to article, 223 if someone is continuously absent for 10 years, then the law allows the treatment of the situation as if that would have occurred. Okay, so in this case, we have presumed a presumption of that. And then we have the last paragraph, Alison passed away in February 2025 and Veronica and that are at longer heads as to how to divide their parents, as yet undivided as state. Odette wanted to take it all because she could not stand George, the Alison's second husband, and did not want him to get any of her parents estate. She hated Veronica for what she did to her father and she was very hurt. That Paul had just left the abandoned family. So as far as she was concerned, he was not entitled to anything. And the questions we have to answer there for are two, okay. So Odette expected to keep it all for herself because her brother went missing, her other sister was, let's say, did not behave properly towards her father. And she absolutely didn't like the second husband of her mother. So practically, we are made to look at the piece, at the people who are being overlooked by Odette, known her claims. First of all, Antida, question one, Antida was very concerned about all this and sought your advice on her and her mother's rights in relation to the estate of her grandparents. And the second one, George. George sought your advice on his rights to Ellison's estate. Mala, we've read the question, what we have to do now is practically go back to our family tree and let's say lift these annotations and then set them into our family tree. So the family tree, we have confirmed that Albert and Ellison, they had a valid Unica Caerta because as we saw, of course, this is an element which would need to be inserted in response. So even as you are picking up elements and eventually inserting them into your family tree, these are all elements which you would need to describe to the examiner. For example, this one is rather relevant that you have to show the examiner that you are aware that the figures that the examiner gave you, the half a million euros and financial assets and the property in them, but you know sort of how to use them in your response. So we know, in this case, Unica Caerta is valid because the greater part of the ownership of the property was left by the spouses to each other. We know that Odette, Paul and Veronica were designated. As there is, we know that with Odette, there was nothing wrong. We know that with respect to Paul, with respect to Paul, by the time that Albert died, there seemed to be no issues. So we must consider him. So we must, at this point, at least consider him that he is still alive on the opening, at the date of the opening of Albert's succession. With respect to Veronica, we know she is unworthy. So did Veronica leave any descendants? Yes, Antida, did she have any descendants? Veronica remains alive. Yes, Antida, Antida, who if Veronica is considered and where it will receive the reserved portion? It's one other question. One other question, which we need to consider before determining Albert's estate. So we saw that there was a clause on forfeiture in the Unica Cartaguaal. It's so. When we said in paragraph number four, that Ellison made a new will, leaving her money to George, did that mean that she revoked her will? And the question here, so was there forfeiture or not? And the question here, we have to ask, is did this revocation, so did this new will by Ellison? Happen before or after Albert's passing? And it happened after Albert's passing. So by that time, the will had taken full effect. Okay, so upon the death of her husband, her first husband, Albert, Ellison was released, released from any penalties, from any contractual obligation. So at that point, she really could dispose of her property in whichever way she wanted, meaning that yes, she gets to benefit, she gets to benefit from Albert's will. Now, so let's go through the structure that I proposed earlier, first of all, capacity to dispose. It seems that Albert and Ellison were both lucid. It seems that there were no issues, the will that they drafted seems to contain all the elements belonging to the Unica Carta, they were married, so it seems like there is nothing to flag with respect to Albert and Ellison's capacity to dispose. Now, capacity to receive. Did all the years have the capacity to receive and there the answers in the negative? We know, Odette and Paul, Paul until the moment of Albert's demise had full capacity to receive, but however, however Veronica was unworthy. Veronica was unworthy, meaning that what are the consequences? Then, Auntie, however, as her daughter, she still gets to have the reserved portion over her mother's state, over, sorry, the reserved portion to which her mother would have been entitled over the estate of her father. Okay, Duffiri Vidalkas, we have, so in this case, we have Odette and Paul as the years and Antida having the reserved portion. We're talking here about, okay, we're talking here about, of course, we're still at the stage of talking about Albert's passing. So, and the result, what happens? Mala, in summary, Albert, upon Albert's passing, Ellison, as was already, as we already told in the question, gets to have, Ellison gets to have the ownership of the half a million euros of financial assets worth, plus, including the use of fruct of the flat in Amabba. Okay, so what we have at this stage is that simply, Odette and Paul are getting at this stage, the bare ownership of the flat in Amabba. And Antida gets the reserved portion. Okay, so this is how the estate of Albert is ultimately worked out. Now, passing on to the estate of Ellison. Okay, now, in case of Ellison, in the case of Ellison, we have to amend our family tree because George comes in and he comes in in a way, which is rather decisive to the way we're going to a portion. Her estate, so Ellison made a new well, drafted a new well, wherein she appointed Odette, Paul, and Antida, Veronica's daughter, as her heirs. Now, let's ask the first question, leaving George the legacy of leaving him all, all her money, including the use of fruct over the flat in Amabba. Issa, what comes in here? So, first of all, we have to determine whether there is capacity to dispose by Ellison. The Ellison have the capacity to dispose, it would seem like this hasn't been questioned throughout the case study. Meaning that now we have to pass on to the second question, capacity to receive. Did all have the capacity to receive? And this is where, once again, once again, we have to make some very important considerations. Odette, it would seem like she's not affected by the capacity to receive, Paul, we have to presume on the basis of the details provided that he died, that he passed away. And then we have Veronica, who we have to decide whether she could be lawfully disinherited or not. Could Veronica be disinherited? So, the basis on which, according to the facts provided on which Ellison could proceed to disinherit, Veronica is a Veronica was prodigal. Okay, so what do we mean? What do we mean by prodigal? The relevant part, article six three, tells us if Veronica was burdened with debts, that the greater part of the reserved portion would be absorbed by such debts. We are not given this. This detail, but it would seem like not enough information was given to us to determine that absolutely Veronica could not be disinherited by her mother. Which means that we have to assume that Veronica still gets to inherit. Sorry, Veronica still gets to have her share of the reserved portion. She couldn't inherit because the appointed there was Antida together with Odette. So what happens here? Veronica, since she could not be lawfully disinherited, she still gets to keep the reserved portion. So how do we work it out? Odette and Antida are the ears. And in that case, there is also the accretion of Paul's share, which cares in their favour. Veronica gets to get the reserved portion. Okay, so she gets to get her reserved portion and then George. What about George? So for sure, he gets the money owned by a lesson. As you may know, however, the reserved portion is in favour of her children and descendants is respected. Okay, so that's a side note you can make. George could get all the money owned by a lesson because a lesson was valid as long as the reserved portion remained intact. So as long as the amount which George gets to transfer in his favour does not exceed the disposable portion. What else? Then there's the matter of the use of fragt. Could George get the claim use of fragt over the entire apartment? No, he couldn't. In this case, we had the legato, the cosaltrui, the legato, the cosaltrui. Then it's a thing held in ownership with someone else, then it's only valid up to the share owned by the test data, in this case, the use of fragt is only valid up to half of that property with respect to the other half. Then it can be claimed by the children, no? The other half, which passed on to the children, upon Albert's passing. Upon Albert's passing, they had the bare ownership then when their mother passed away, then they recovered the full ownership. And therefore, the only thing left to mention at this point is that, however, if the property in Abba was used by George and a lesson as a matter of only home, then in that case, George could claim the right of habitation. So, these would be the way, these are all the elements which could be mentioned, in this case, of course. It is difficult to mention everything, especially because there were some passages which were rather demanding. But I do hope that while working out this paper, we understood a structured way in which we can approach this kind of example. I think the walk through to the passage was very helpful as well, and even answering the actual questions, you'd get a bit of a better idea of how you have to approach the exam question. So yes, thank you very much. So shall we move on to letting unhiring? Absolutely. Right, so before I get into the technical rules once again, how should students actually approach the law of letting unhiring in Malta? So the law of letting unhiring in Malta is absolutely complex. It is so complex that after dealing with the law of lease and third year, we had to dedicate a semester long study on it dealing with select issues in letting unhiring and what are these select issues. It is these special legislations which, let's say, supersede the generic provisions of the code. So the ideas that interred, there you go over the basic ideas, the main ideas of the law of letting unhiring and the main concepts involved. And then in 40, you go more specifically into the special statutes regulating letting unhiring. Why does the law of letting unhiring? Why is it characterized by so many special statutes? Because our law of letting unhiring, it is, let's say, a living testimony of all the economic and social transitions which the country went through over the past decades. In fact, especially when dealing with residential leases, so leases used for residential purposes, we're dealing with housing. And of course, housing has far-reaching issues with strong, very strong social and economic considerations which are linked closely to the employment and hence to the economy in general. And why is housing considered such a contribution since the video? In letting unhiring, we're dealing directly with engaging direct-leave-tomene concepts, class and capital. So property ownership is, is, the main means through which wealth is either preserved or increased. But on the other hand, we have leases who require access to housing which is essential if they do not own property. So when approaching the concept of letting unhiring, we are necessarily looking at almost definitely looking at a class divide. And of course, property investment and rental income, if they are the main way through which households can climb the economic ladder or preserve their position. And the economic ladder, then obviously, your officials' issues dealing with direct-to-property, which as we know, this will co-treat it in an absolute manner. But then there are also considerations of a political sometimes even of an economic nature which require that special conditions be imposed on a contract of lease in order to also ensure that a level playing field is somehow maintained. So what competing interest does the law of lease is seek to balance? So here we're talking about tenants requiring affordable and affordable place to live. They require a stable place to live, so conditions granting them stability over their residents and most of our contractual certainty. Of course, the idea that they will not be kicked out from one moment to the other. Landlords on the other hand, they're very important because this is a private market and the vitsa private market you need to ensure that it is a sector regulated in a way which keeps attracting investment. So it's important for landlords for them to have incentives to keep investing in their property, so not only to increase the stock of rental properties, but also to keep them well maintained for the benefit ultimately of the tenants. Another concern is of course ensuring the time the eviction of tenants in case of default. And ultimately having access to remedies in case of damages. We know it's a rather significant concern by certain landlords. Then why is it important not to approach this subject with a preconceived position? It's very important because both parties have legitimate concerns as we've said and the challenge which each law takes on is how to reconcile these conflicting interests. Okay, so what broader question underlies the regulation of pre-1995 leases? So this is very important because as we said the law of letting and hiring in multis is rather complex. Why is it complex because the time, the particular time when the contract would have been entered into practically determines which regime, which particular regime is it subjected to. In the case of pre-1995 leases, this is something which the students are to let us upon with with Professor Galia last year. As they are doing with with with doctors, Aquilina and Galia right now. The problem with pre-1995 leases is that it trust the burden solely on on the landlord. Which let's say such a situation, such as the situation that resulted from this imbalance was so serious that you even had the courts declaring first the ECHR and then followed by the multis constitutional court that there was a breach, a violation of the landlords right to property under Article 1, Protocol 1 of the Convention and Article 37 of the of the Constitution. So what happened with pre-1995 leases and this is of course the background to what we're going to discuss in more detail in in a few minutes. Is that the burden placed on landlords which was practically that of having them carry the entire burden for providing Social accommodation. which was however a duty which belonged to the state and not to the private landlords that resulted in a breach of the of the landlords fundamental rights which then of course triggered the reforms which let's say culminated in 2021. And why is the time line so important when studying MULTI's LISLO? It is absolutely important because if you do not take this factor into consideration, you will almost inevitably misapply the law. Like you will get certain questions on post 2020, LISLO is referring to the 2% which is a concept which is solely related to pre-1995 LISLO. So it's absolutely important to place the contract in the right period because otherwise if you miss that temporal period then you will probably misapply everything that that also is from it from the contract. So for students what are the main categories of LISLO? For specifically for the purposes of this study on it, the main categories I think are 4. So we have post 2020 LISLO which is regulated under chapter 6.04. Then we have pre-1995 LISLO as governed by chapter 69 and chapter 158. So in chapter 69 we're talking about all their LISLO and chapter 158. We're talking also about all their LISLO but on properties which were the controlled under the housing, the control act and more commonly when you had temporary amphitheatical grants. So conceded before 1995 which were then converted into LISLO by the operation of the law, by the operation of course of chapter 158 itself. Then the other main category here we're talking about in the study and it is the autobiographical LISLO. You mentioned chapter 69 which chapter 158. What would be the most important distinction between them? So thankfully for the students after 2021 this distinction is no longer central. Why? Because the key issue now is what happens with the means test which determines whether the LISLO can be prolonged and at which conditions and therefore let's say the key issues about 69 and 158 nowadays the main difficulty perhaps is placing the relationship under the correct regime but in terms of effects they are almost identical. It's important because of course there's a remedy under chapter 69 and the remedy under chapter 158 they are equivalent but of course you have to invoke the correct remedy under the law that applies to that specific contract. And what is the significance of the means test? Introduced in recent reforms? So the significance of the means test introduced in well this has a long story but let's say as updated in 2021 not to go over a lot of the details which might be relevant for our purposes. But practically the means test is what practically determines the deservedness of the tenant to keep benefiting from social protection or not. So the means test is crucial. Why? Because upon if a pre-1995 landlured regulated by either chapter 69 or chapter 158 files an application before the reintegration board. For an increase what the reintegration board will do before determining the increases practically to assess whether the tenant as such deserves to remain an occupation of the property or not. Okay and what happens? If the tenant is found to exceed to exceed the the the means test of the tenant in reality it results does not appear to to deserve any particular degree of social protection. In that case in that case he is given two years to vacate the property. If on the other hand the tenant the tenants means are below the limits set by the means test so if the tenant passes full fills the means test then in that case he or she will be allowed to remain in the property but this time at the increased rate reflecting roughly 2% of the freehold value of the property. Why am I saying roughly because the 2% is the cap. Okay so it is it is the uppermost limit. In some cases the RRB might go below with although the constitutional court has warned the RRB not to go far below it because of course it would once again bring into bring into question the constitutionality of the of the arrangement. So this is the attempt the 2% so to speak is the attempt to rebalance and the redistribute the burden between the private landlord and the state. Why? Because the increase in most cases especially in the cases of pensioners and elderly households it is paid through a state subsidy so as a matter of fact now we have the situation which the European Court of Human Rights had been leading us towards since 2006 which is where you have the private sector and the state sharing the responsibility at least equally between them. So similar to what we've done for law of succession how should students use this framework when approaching an exam question. So approaching the exam of living and hiring is a lot simpler than approaching the one on the law of succession. Why? Because the one thing you have to do is of course to identify at the beginning right at this time the regime under which the case study provided is regulated. So I think we can give an example now by moving on to the past paper of June of last year. Where we had three questions. If the correct regime is identified then the question should present a rather limited degree of difficulty. So if you identify the correct regime then it should be fairly easy to answer correctly. Now what do we have here? We'll try to go a bit more quickly than we did in the law of succession because of course the elements are less in this case. But we're told in question one, Alice deceased parents had granted a dwelling located in Cosbyqua by title of Tempraryan fit uses for a term of 25 years through a deed of amphitheautical concession dated 1st January 1985. So what is relevant here? We're talking about a title of Tempraryan fit uses that almost inevitably means that we have a case regulated under chapter 158. Okay so that should already let's say put us on the right path then we're given some detail about the tenant. The tenant was occupied by Bella as a 25 year old widow who has lived there as her principal residence ever since it was originally granted to her by Alice parents. Why is this relevant? So we know that she's very elderly and we also know that she's been living there since the time of her of her grandparents. So there's absolutely no issue what the question is telling us here is that there's absolutely no issue as to whether her title is in doubt or not. Okay that's what we get from it. Is we get some more details here recently. Ellen engaged in an architect to inspect and value the property. Okay which was a praise that 350,000 and the animal ground rent is is that of 550 euros. This Ellen is becoming increasingly frustrated also because of the significant potential for redevelopment and here you are meant to to advise Ellen. The answer is rather straightforward why because Ellen, which we did difficult here was identifying whether we are regulated here under article 4A of chapter 69 or article 12b of chapter 158 as we said because of the presence of a Tempraryan fit uses. We are most certainly regulated under article 12b of chapter 158. So whether Ellen may initiate any proceedings, yes he can and there you sort of outline the procedure in our case under article 12b and then very importantly whether Ellen may also exercise any action to remedy what he considers to be past injustices and as you know here, mella also very importantly what I forgot to mention in the previous answer be aware of the competent forum. Okay so when we're seeking an upward revision of the rent there we have to go before the rent regulation board but if we want a remedy for past injustices there the competent forum is the constitutional court. These are remedies, both remedies that can be taken simultaneously one does not need to proceed the other and you will be granted a remedy for past the past violation of article 1 protocol 1. This is a constitution election here you would be requested you would be expected to make reference to case law and more importantly the parameter said by the 2021 ECHR judgment of Calc versus Malta okay which practically it takes into consideration the profits lost by the landlord and then according to the equation established in this judgment it is halved in order to reflect 20% reflecting the legitimately reasons in the public interest for which the 30% reflecting the legitimate reasons in the public interest for which the government would have protected that property and kept rents below market value and 20% because of course one is uncertain as to whether the landlord would have received that income continuously over that period of time. The uncertainty as to whether the landlord would have received uninterruptedly a full market value rent for that property. Then there's question number two. Question number two, it would appear that since the previous question was on chapter 158. Now, question two will be on chapter 69 because we're not talking about agricultural properties and once again we're seeing that the family had been occupying the property for three generations and what happens here I'll say it very briefly, Carmelo is a 60-year-old man and Alex, the landlord, the fact that he's 60 years old is important and I'll explain why but it's important to take note of it, no detail is redundant, okay in this case studies. And what is the landlord reporting, what is the complaining of unauthorized developments and the fact that Carmelo seems no longer to be using that property. Further more we're told that while Alex is undergoing a medical separation and is in financial distress, detainment seems to be in a much better financial position because he's inherited an important amount of money, a significant amount of money and he's also acquired an apartment in Hamroon and sold a property for 750,000 so what does this tell us? It means that now the tenant has in his possession significant means it also tells us that he also potentially has an alternative property, okay in the apartment that he bought in the same locality in Hamroon, what are the elements that needed to be addressed here? So first of all the grounds for the solution under question A and these here all relate to reasons under potential grounds under Article 9A of chapter 69, non-use, the first one non-use, he was not using the property he was living at his daughter's house and non-use is considered as a change in destination if it is a voluntary non-use and perhaps the unauthorized developments which he's complaining of might also result in a failure to comply with the conditions of the agreement. So if this is considered a failure to comply with the agreement that practically means that there are grounds for Alex not to oppose himself to the renewal of the lease and then question B whether there are any additional grounds and yes there seem to be the first one under Article 9B why? Because if the lesser requires the dwelling house for himself as it seems to be the case with Alex and the tenant has an alternative accommodation which is reasonably suited but which is reasonably suitable for his needs then in that case the lesser might request once again before the nether regulation board the non-renewal of the lease. An additional thing to take into consideration is the means test. Since he's a 60 year old what about his situation and that's a pre-1995 lease could there be a remedy under Article 4A of Chapter 69 possibly yes but it depends on the income for sure he exceeds the capital assets the threshold for capital assets which is at 213,000 euros in terms of income which is that of 4 to 4500 euros yearly and will income it would seem like it's not the case. So once again you would need to show awareness of this and finally the last question it's on Chapter 604 why because we know that the property is where rented out. In more recently in 2014, Malah Chapter 604 a very very very brief note on it there are important passages which you have to keep in mind it is not an extensive act it is not unlimited okay so what do you need to to to make sure you you you have properly covered. Administration and the penalties in case of failure registration the consequences civil and criminal the automatic renewal so the need for a congeo or a notice for an renewal the conditions for the withdrawal by the tenant for the unilateral withdrawal of the tenant then the forbidden clauses including those affecting eviction and finally the panel and the manner in which it resolves matters such as those relating to the deposit maintenance and water and electricity okay so the case studies very briefly there were four questions each dealing with a very specific situation under Chapter 604 the first one is that on our land lady our land lady she rented out a property in SWATAR and three months into the term the tenant just left gave her notice and left so Anna's claiming that she suffered a financial loss so what what should Anna do in this case and we're until which point the rights extend for sure for sure and we know that it will be where to presume that that this is a one year lease and then the tenant could not vacate the property before the first six months the tenant here left after three months meaning that Anna has to be reimbursed by law for at least an additional three months as long as the property remained vacant because as we know the law doesn't allow double compensation and in this case we know that the property had remained had truly remained remained vacant for a further three months which means that yes Anna can legally make a claim against her first tenant for the three months of of of lost profit of profit that she lost that she missed out on second paragraph Anna wants to rent out the property for a short term basis what happens shortlets are only possible for this is the answer that that that was expected by the examiner for non-resident workers non-resident students tenants reading property for less than six months or non-resident not seeking to establish residence so in this case this was these were the four elements you needed to show awareness of and thirdly the clause where she was she stipulated that fixed utility charge of 100 euros per month what's relevant it's relevant that this clause is forbidden you cannot charge tenants and rate which is superior to the one which they are effectively consuming and which means that therefore she also has an action for reimbursement and finally the apartment in Pembro in Pembro the last paragraph so the the tenant left she has no wish with the tenant but the tenants for my partner who likes any contractual relationship with Anna has remained an occupational continuous to decide in the apartment without her consent so in this case we're talking about the eviction of someone who doesn't have title okay so what what what do we do if it were a tenant the procedure would be under article 16 of chapter 69 but since even the question itself specifies that there is no contractual relationship we can apply for summary for summary proceedings but under article 167 COCP paragraph B and before the first whole of the civil court okay not the RRB so once again do not underestimate also issues of of competence okay because various actions although available to the to the landlord they must be exercised before separate courts excellent and that brings us to the end of this revision podcast we would like to thank our academic partners ganado advocates who have supported this project from the get go providing us with the recording studios podcast platform and everything in between I also wish to thank again doctor Sherry for accepting our invitation to be with us on this episode and we really hope that this session was beneficial to all of you listening and we wish you the best of luck for your coming exams.