MALTA Law and Practice Contributed by: Damien Degiorgio and Ramona Galea, Fenech Farrugia Fiott Legal
immovable property or any other right over such property, under whatever title, must be done by means of a public deed or a private writing. Whereas a public deed published by a notary public is required for a contract of sale of property or a contract of emphyteusis, a lease agreement can be effected by means of a private writing. It may be the case that the immovable property to be transferred falls within a registration area requiring compulsory registration as classified by the responsible minister. In Malta, the Lands Authority together with the Public Registry are responsible for such registrations. In fact, if such registration is not effected as necessary, the following shall not become effective in respect of third parties, whether beneficially or in an adverse manner: • any contract conveying the transfer of own - ership, or any real right over such property, including transactions that relate to immova - ble property held under trusts, or any contract having the effect of dissolving, rescinding or revoking any such transfer of ownership or of any real right over immovable property; • any judgment with the effect of dissolving, rescinding or revoking the ownership or any real right of immovable property or with the effect of adjudging any transfer of ownership, any real right over property, any hypothec created by law, or of creating a hypothec; and • any transfer of immovable property by means of a judicial sale and any redemption of ground rent. Registration is only completed once the duty on the property has been paid in terms of the Duty on Documents and Transfers Act, Chapter 364 of the Laws of Malta.
Similarly, all private residential lease contracts entered into, from 2020 onwards, must be regis - tered with the Housing Authority within ten days from the commencement of the lease, and regis - tration is subject to an administrative fee as lev - ied by the responsible minister, as stipulated by the Private Residential Leases Act, Chapter 604 of the Laws of Malta. Failure to do so shall render such contract null and void, with the lessor liable for a fine. The law does, however, contemplate the right of either party to register the contract, When entering into a promise of sale, a notary is normally engaged to carry out examination of title over the relevant immovable property. Once the relevant searches and due diligence have been carried out, generally in the interim period between the promise of sale and the eventual sale/purchase agreement, the notary shall then inform the transferee of the facts and findings resulting from the searches carried out and report all information that has come to their knowledge. 2.5 Typical Representations and Warranties It is normal practice for parties entering into a commercial real estate transaction to guarantee that they possess the necessary capacity and consent together with the other requirements stipulated by law to enter into such a contract. In such contracts, it is essential for the owner of the property to guarantee their title of ownership by means of the warrant of peaceful possession and against any latent defects that may render the property unfit for use or diminish its value. The title of ownership is often guaranteed by means of a general hypothec, which, as explained previously, is a legal right over all always at the expense of the lessor. 2.4 Real Estate Due Diligence
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