MORTMAIN ACT (preamble—mortmainact)

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CHAPTER 201

MORTMAIN ACT

To make new provision in respect of Mortmain, in substitution for the

provisions of Mortmain Law.

(1st September, 1967) *

ACT XXVI of 1967 as amended by Act LVIII of 1974; Legal Notice 148

of 1975; Acts XIII of 1983 , XIV of 1991 and IV of 1992 ; and Legal

Notice 411 of 2007 .

The short title of this Act is the Mortmain Act.

In this Act, unless the context otherwise requires -

"architect" includes a civil engineer;

"certified purpose" means the use specified in the certificate

issued by the competent ecclesiastical authorities for the purpose of

subarticle (1) of article 8;

"competent ecclesiastical authorities" means in relation to the

Roman Catholic Church, the Archbishop of Malta or the Bishop of

Gozo according to whether the immovable property is situate

within the territorial limits of the diocese of Malta or of Gozo, and

in relation to any other church or other pious or religious institution

belonging to a denomination other than the Roman Catholic

Church, the highest authority of that denomination in Malta as may

be recognised by the Attorney General for the purposes of this Act;

"extended period" means any period as extended under article 4

or the period which is to run from the date of restoration referred to

in article 9;

"immovable property" means any land or building, and includes

the dominium directum, the dominium utile, the nuda proprietas or

the right of usufruct of any land or building;

"Malta" means the Island of Malta, the Island of Gozo and the

other Islands of the Maltese Archipelago;

"prescribed period" means -

(a) in relation to any immovable property which is

acquired by any church or other pious or religious

institution subject to the temporary right of usufruct in

favour of one or more persons not being a church or

other pious or religious institution, one year from the

day of the cessation of such usufruct and its

consolidation with the nuda proprietas;

(b) in relation to any immovable property which is

acquired by any church or other pious or religious

institution subject to the right of use in favour of one

or more persons not being a church or other pious or

*See Government Notice No. 573 of the 1st of September, 1967.

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religious institution or subject to the right of habitation

in favour of one or more persons, one year from the

day of the cessation of such right of use or habitation;

(c) in relation to any immovable property, not falling

under paragraph (a) or (b), which is acquired by any

church or other pious or religious institution by title of

legacy, one year from the day on which such church or

other institution is given possession of such property

or two years from the day of the death of the testator,

whichever is the earlier;

(d) in relation to any immovable property not falling

under paragraph (a), (b) or (c), one year from the day

of acquisition of such property by the church or other

pious or religious institution.

No immovable property situate in Malta shall be

considered as alienable to, or shall, under any title, be acquired by,

any church or other pious or religious institution, except under the

express condition that such property shall, within the prescribed

period, be definitely and absolutely disposed of, by such church or

institution, to some person or persons not subject to the above

limitation.

Where it is proved, to the satisfaction of the Prime

Minister, that it is not possible for a church or other pious or

religious institution to dispose of any immovable property falling

under the provision of the last preceding article within the

prescribed period, the Prime Minister may, on application in

writing by the administrator or other lawful representative of such

church or institution, grant extensions of the prescribed period

which do not exceed in the aggregate the total period of three years

Provided that the Prime Minister may, on recommendation

by resolution of the House of Representatives, grant further

extensions beyond the said period of three years.

Where any immovable property falling under the

provisions of article 3 has not been absolutely sold or disposed of,

as laid down in that article, within the prescribed period or, if such

period has been extended, within the extended period, then, at the

expiration of the prescribed period or of the extended period, as the

case may be, such property shall ipso facto be forfeited to the

Government.

(1) The Attorney General is entrusted with the execution

of this Act.

(2) Any notary who receives any deed inter vivos purporting to

convey or assign any immovable property to a church or other

pious or religious institution, shall, within fifteen days from the

date of any such deed, transmit to the Attorney General a certificate

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signed by the notary himself, stating the date on which the deed

was received, the nature thereof, the name of the parties thereto and

the immovable property to which it relates.

(3) Notwithstanding the provisions of articles 128 and 131 of

Notarial Profession and Notarial Archives Act, any notary who

contravenes the provision of the last preceding subarticle shall be

liable to a fine (multa), to be awarded by the Court of Revision of

Notarial Acts in the exercise of its functions under that Act, from

eleven euro and sixty-five cents (11.65) to forty-six euro and fifty-

nine cents (46.59).

The provisions of articles 3 and 5 shall not apply -

(a) to any immovable property acquired by any church or

other pious or religious institution, while there is in

force in relation to such property a declaration made

by the President of Malta under article 3 of the Land

Acquisition (Public Purposes) Ordinance

Provided that, where the Prime Minister notifies in

writing the administrator or other lawful representative

of the church or other pious or religious institution

concerned that the property or any part thereof is no

longer required under the said declaration, the

provisions of articles 3 and 5 shall apply as if such

property or part thereof had been acquired by the

church or other pious or religious institution concerned

on the date of the receipt by its administrator or other

lawful representative of the said written notice;

(b) to any immovable property acquired by any church or

other pious or religious institution or part of such

property while it is held by the Government by title of

possession and use or by title of public tenure under

the provisions of the Land Acquisition (Public

Purposes) Ordinance

Provided that, where the property or any part thereof

ceases to be held by the Government by title of

possession and use, the provisions of articles 3 and 5

shall apply as if such property or part thereof had been

acquired by the church or other pious or religious

institution concerned on the day on which the

administrator or other lawful representative of such

church or other institution has received from the Prime

Minister written notice of that cessation;

(c) to any immovable property acquired by any church or

other pious or religious institution by title of exchange

against the transfer of other immovable property and -

(i) the immovable property given in exchange by

such church or other institution is exempt from

the provisions of articles 3 and 5 for any reason

other than under article 8;

(ii) the value of the immovable property received in

exchange by such church or other institution

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does not exceed the value of the immovable

property given in exchange by more than five

per centum and there is annexed to the deed of

exchange a declaration signed by an architect

certifying such fact and signed also by the

Director of Public Works accepting such fact;

(d) to any immovable property acquired under any title,

other than a title of exchange in which case the

provisions of the last preceding paragraph shall apply,

by any church or other pious or religious institution

from another church or pious or religious institution, if

such property was held by the transferor exempt from

the provisions of articles 3 and 5 other than under

article 8;

(e) to the reversion, for any reason, of the dominium utile

of any immovable property and consolidation with the

dominium directum in favour of any church or other

pious or religious institution which, prior to the

granting of such property by title of emphyteusis, held

it exempt from the provisions of articles 3 and 5 other

than under article 8;

(f) to any immovable property purchased by a church or

other pious or religious institution, by the payment, as

purchase money, of the amount of compensation which

such church or institution shall have received in

respect of the transfer to the Government of any

immovable property held by it exempt from the

provisions of articles 3 and 5 other than under article

8; provided such compensation is not less than two

hundred and thirty-two euro and ninety-four cents

(232.94), and the following provisions are observed

(i) the administrator or other lawful representative

of the church or institution desiring to invest, in

the acquisition of any immovable property, the

sum so paid to him by way of compensation

shall, by an application to the Civil Court,

Second Hall, within the time of six months to be

reckoned from the day on which he shall have

received payment of the compensation, (which

time may, for just cause, be enlarged by the said

court), apply for authority to acquire the

immovable property proposed to be purchased

on behalf of the church or other institution by

the payment of the said compensation as

purchase money;

(ii) the application shall be accompanied by a copy

of the deed of transfer of the immovable

property to the Government and by a valuation,

made by an architect, of the immovable property

proposed to be acquired;

(iii) the court, being satisfied that the value of the

immovable property to be acquired does not

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exceed the amount of the compensation received

by the church or other pious or religious

institution for the transfer to the Government of

its immovable property, or that it exceeds it only

by five per centum and not more, shall allow the

application;

(iv)

in order to ascertain the value of the property

proposed to be acquired, the Court may appoint

one or more architects, of its own choice,

requiring from them a declaration on oath that

they have faithfully and with exactness

performed the duty entrusted to them.

(1) Subject to the provisions of subarticles (2), (3) and (4),

the provisions of articles 3 and 5 shall also not apply -

(a) to any site which has been acquired, under any title

whatsoever, by any church or other pious or religious

institution for the purpose of the construction thereon

of a church or the building of a pious or religious

institution, or for the extension thereon of any such

church or building, or for the use of churches, or for

the construction or extension thereon of a parochial

house, a seminary or a house for any religious

community or for the construction of cemeteries,

provided that a certificate of the approval of the use

for any of the said purposes, given by the competent

ecclesiastical authorities, is received by the Attorney

General within ninety days of the date of publication

of the deed by virtue whereof such acquisition was

made;

(b) to any building which has been acquired, under any

title whatsoever, by any church or other pious or

religious institution for any of the said purposes,

provided that a certificate as referred to in the last

preceding paragraph is received by the Attorney

General within the period therein prescribed. *

(2) Except where the site or the building referred to in the last

preceding subarticle has been acquired for the purpose of the

construction or the extension thereon of a church, such site or

building shall be forfeited ipso facto to the Government unless it

has been applied to the use specified in the certificate of the

competent ecclesiastical authorities within two years, in the case of

a site, or within one year, in the case of a building, from the date on

which, but for the provision of the said subarticle, the prescribed

period would commence to run, or within such further period,

which may not exceed two years, as the Prime Minister, on

application of the administrator or other lawful representative of

*Act XIV of 1991 (transitory provision): The term of ninety days referred to in

article 8(1)(b) shall, in relation to immovable property acquired by a church or other

pious or religious institution belonging to a denomination other than the Roman

Catholic Church, at any time after the 1st day of January, 1990, but before the 12th

July, 1991, be deemed to commence to run as from the 12th July, 1991.

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the church or other pious or religious institution concerned, may

have allowed in writing before the lapse of the original period.

(3) Where the site or the building referred to in subarticle (1)

has been acquired for the purpose of the construction or the

extension thereon of a church, such site or building shall be

forfeited ipso facto to the Government unless the structure of the

church or the extension thereof has been erected within three years

from the date on which, but for the provision of the said subarticle,

the prescribed period would commence to run, or such longer

period, which may not exceed six years, as the competent

ecclesiastical authorities will have specified for that purpose in

their certificate referred to in subarticle (1).

(4) Where a site or building, which is exempt from the

provisions of articles 3 and 5 under subarticle (1), ceases to be used

for the certified purpose -

(i)

the administrator or other lawful representative

of the church or other pious or religious

institution to which such site or building belongs

shall, under penalty of ipso facto forfeiture to

the Government, within three months of the date

when the site or building has ceased to be so

used, notify in writing of such fact the Attorney

General; and

(ii) except where it has been forfeited to the

Government owing to the default of notice in

accordance with the provision of the last

preceding subparagraph, such site or building

shall be deemed, for the purposes of this Act, to

have been acquired by the church or other pious

or religious institution to which it belongs on the

day on which it has ceased to be used for the

certified purpose and, thereupon, the provisions

of articles 3 and 5 shall apply accordingly.

(5) Without prejudice to the provisions of subarticles (2), (3)

and (4), the expressions "building", "parochial house", "seminary"

and "house for any religious community", in subarticle (1), shall be

deemed to include any such open land annexed to any of the said

constructions and included in the certificate of the competent

ecclesiastical authorities as the Prime Minister in his discretion

may approve

Provided that the Prime Minister’s approval shall not be

required in respect of any courtyard or other similar open space

which may normally form part of a building.

Where any immovable property has been forfeited to the

Government for non-compliance with any of the provisions of this

Act and the administrator or other lawful representative of the

church or other pious or religious institution by whom such

property has been forfeited shows satisfactorily that such non-

compliance was reasonably justified, it shall be lawful for the

Prime Minister, on the recommendation by resolution of the House

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of Representatives, to order the restoration of such property to the

church or other institution concerned, and in such case the period

for compliance with the provisions of this Act shall run from the

date of such restoration unless the property be restored as exempt

from the provisions of this Act

Provided that no order for restoration shall be made in

respect of the property forfeited and already disposed of by the

Government or in respect of profits on property restored under this

article which have been already received by the Government up to

the day of the restoration.

It shall be lawful for the Prime Minister, on the

recommendation by a Resolution of the House of Representatives,

and with the concurrence in writing of the competent ecclesiastical

authorities, to exempt by order any church or other pious or

religious institution from the operation of this Act in respect of any

determinate immovable property, and from the date of such order

the church or institution so exempted shall be free to hold and

enjoy such property without the restrictions laid down in this Act.

(1) Any immovable property which, at any time before the

coming into force of this Act, has been forfeited to the Government

owing to non-compliance with any of the provisions of the

Mortmain Law, is by virtue of this Act restored to the church or

other pious or religious institution to which such property belonged

immediately before it was so forfeited and the provisions of this

Act shall apply to such property as if it had been acquired by the

church or other pious or religious institution on the coming into

force of this Act

Provided that, where any such property has been disposed

of before the coming into force of this Act in accordance with the

provisions of the Mortmain Law, although not within the time

established therein or thereunder, the provisions of this Act shall be

deemed to have been complied with and any such disposal shall be

deemed to have been validly made.

(2) The provision of the last preceding subarticle shall not

apply to any immovable property which was declared to have been

forfeited to the Government by a judgment of the superior courts or

which, having been forfeited to the Government, has been disposed

of by the Government before the coming into force of this Act, and

such property shall remain so forfeited notwithstanding the repeal

of the Mortmain Law.

(1) With effect from such date as the Prime Minister may

by notice in the Gazette establish * (hereinafter referred to as the

effective date) any church or other pious or religious institution

shall, subject to the provisions of any law dealing with the

acquisition of immovable property by non-residents and of any

other ordinary law of general applicability have the right to acquire

and hold possession of immovable property in Malta without any

obligation to dispose of the same within any period and without any

* 18th February, 1993 - see L.N. 58 of 1993 .

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restriction arising out of this Act as to its use and may continue to

hold any immovable property, which may have been acquired by it

before the effective date, without any such obligation or restriction.

(2) The provisions of article 6(2) shall not apply to any deed

therein referred to published on or after the effective date.

(3) Any immovable property which on or before the effective

date may have been forfeited to the Government in virtue of this

Act, and which on the effective date was still in the possession or

detention of a church or other pious or religious institution is

hereby restored to the church or other pious or religious institution

to which it belonged before it was so forfeited

Provided that where any such property has been disposed of

before the effective date in accordance with the provisions of this

Act, although not within the time established therein or thereunder,

the provisions of this Act shall be deemed to have been complied

with and any such disposal shall be deemed to have been validly

made.