463 tal-2011

L.N. 463 of 2011

CIVIL CODE

(CAP. 16)

Continuation of Tenancies (Means Testing Criteria)

Regulations, 2011

BY virtue of the powers given by article 1531F and 1622A

of the Civil Code, the Minister of Education, Employment and the

Family, in consultation with the Minister of Finance, the Economy

and Investment, has made the following regulations:-

(1) The title of these regulations is the Continuation of

Tenancies (Means Testing Criteria) Regulations, 2011.

(2) These regulations shall be deemed to have come

into force on the 1st January, 2010

Provided that nothing in these regulations shall entitle

any person to revive a tenancy which has been terminated between

1st January 2010 and 30th September 2011.

(1) These regulations establish the criteria of the means

test to be satisfied in terms of article 1531F of the Civil Code by a

person with a claim to the continuation of a tenancy under the said

article.

(2) In order to satisfy the means test criteria

established by these regulations a person shall be required to have

both an income and capital within the limits established by these

regulations.

(1) Without prejudice to the provisions of regulation

8 the only relevant period, hereinafter in these regulations referred

to as the “relevant period”, for the calculation of means for the

purposes of these regulations shall be

(a) with regard to the income criterion, the income

between the 1st January and the 31st December during the

year immediately preceding the year of death of the tenant;

(b) with regard to the capital criterion, the capital on

the date of death of the tenant.

(1) Where the landlord and the person with a claim to

the continuation of the tenancy do not agree that the said person

meets the means test criteria established in these regulations either

party may, within eighteen (18) months from the death of the

tenant, file an application to the Rent Board demanding that the

said Board will carry out the means test

Provided that in cases where the death of the tenant

occurred between the 1st January 2010 and the 30th September

2011 the period of eighteen (18) months referred to in this

paragraph shall commence to run from the 1st October 2011.

(2) Means test proceedings shall be heard by the Rent

Board behind closed doors and the record of the proceedings shall

only be accessible to the parties subject to an obligation on the

landlord to maintain the information contained in the said record as

secret information. Any person who divulges information in breach

of the provisions of this regulation shall be guilty of contempt of

the Rent Board without prejudice to any other civil or criminal

liability to which the said fact may give rise under any other law.

(3) Subject to any procedural rights exercisable in

or in respect of means test proceedings and to the provisions of

regulation 8 of these regulations a means test shall be carried out

only once.

(4) In any means test proceedings the person with a

claim to the tenancy shall be bound to

(a) present a statement and authenticated

documentation of his income and capital and to substantiate

the same for the purpose of demonstrating his level of income

and capital in accordance with these regulations during the

relevant period;

(b) provide statements and authenticated

documentation in respect of a period of five (5) years

immediately preceding the relevant period,

so as to enable the Rent Board to determine whether

such person has during the said period immediately preceding the

relevant period divested himself of any capital or income without

proper explanation.

(5) Notwithstanding the other provisions of these

regulations, where the Rent Board is satisfied that the person with

a claim to the tenancy has, during the said period of five (5) years

immediately preceding the relevant period, divested himself of

any capital or income without proper explanation, the Board may

decide to take into account any capital or income of which the said

person has divested himself of without a proper explanation by

including it in the computation of capital and income of the said

person.

(1) For the purposes of the income criteria of the

means test, “income” means income derived from any of the

sources mentioned in article 5 and the following paragraphs of

article 4 of the Income Tax Act

(a) in sub-article (1), paragraph (a), paragraph (b), (c)

excluding the proviso thereto, paragraph (d), paragraph (e)

and paragraph (g) excluding the proviso thereto; and

(b) sub-article (2), paragraph (a) of sub-article (3)

excluding the proviso thereto, and paragraph (b) of sub-article

(3).

(2) For a person who is younger than forty-six (46)

years of age on the date of death of the tenant to meet the income

criteria of the means test, the income of the said person during

the relevant period shall not exceed twenty-five thousand euro

(€25,000).

(3) For a person who is forty-six (46) years of age or

older to meet the income criteria of the means test, the income of

the said person during the relevant period shall not exceed forty-

two thousand euro (€42,000).

(4) For a person who is younger than forty-six (46)

years of age and is a disabled person registered with the National

Commission for Disabled Persons and the type of disability is

considered to be of a severe nature, to meet the income criteria of

the means test, the income of the said person during the relevant

period shall not exceed forty-two thousand euro (€42,000).

(5) For a person who is forty-six (46) years of age

or older and is a disabled person registered with the National

Commission for Disabled Persons to meet the criteria of the

income part of the means test, the income of the said person

during the relevant period shall not exceed fifty-five thousand euro

(€55,000).

(6) For the purposes of determining the severity

of disability of such person, as required in sub-articles (4) and

(5), such assessment is to be carried out in the same manner

as that applicable in the case of claims for an invalidity pension

under paragraphs (e) and (f) to the first proviso of article 106 (e)

of the Social Security Act, with the involvement of the National

Commission for Disabled Persons.

(1) For a person who is younger than forty-six (46)

years of age to meet the capital criteria of the means test, the

capital of the said person shall not exceed one hundred and twenty-

five thousand euro (€125,000).

(2) For a person who is forty-six (46) years of age or

older to meet the capital criteria of the means test, the capital of the

said person shall not exceed one hundred and seventy-five thousand

euro (€175,000).

(3) For a person who is younger than forty-six (46)

years of age and is a disabled person registered with the National

Commission for Disabled Persons and the type of disability is

considered to be of a severe nature, to meet the capital criteria of

the means test, the capital of the said person during the relevant

period shall not exceed one hundred and seventy-five thousand

euro (€175,000).

(4) For a person who is forty-six (46) years of age

or older and is a disabled person registered with the National

Commission for Disabled Persons to meet the capital criteria of

the means test, the capital of said person during the relevant period

shall not exceed two hundred thousand euro (€200,000).

(5) For the purposes of determining the severity

of disability of such person, as required in sub-articles (3) and

(4), such assessment is to be carried out in the same manner

as that applicable in the case of claims for an invalidity pension

under paragraphs (e) and (f) to the first proviso of article 106 (e)

of the Social Security Act, with the involvement of the National

Commission for Disabled Persons.

(1) In calculating the capital criteria of the means test,

account shall be taken of

(a) the value of any immoveable property belonging

fully to the person with a claim to the tenancy only if the said

person holds vacant possession of the said property;

(b) money deposited in a bank which can be withdrawn

at less than three months’ notice;

(c) cash in hand;

(d) time deposits;

(e) bonds;

(f) stocks;

(g) securities;

(h) any other financial instrument or financial product.

Means Test in cases of continuation of a lease by persons

who are eligible in solidum.

Where several persons have a claim to the tenancy in

solidum in accordance with the provisions of article 1531F of the

Civil Code, it shall be enough if one of the said persons satisfies

the income and capital conditions of the means test provided for in

these regulations

Provided that any person who, in the situation referred

to in this regulation passes the means test, such person shall be

eligible to continue the tenancy notwithstanding the demise of any

other claimant to the tenancy

Provided further that where the means test of only one

claimant has been effected or where several claimants have been

tested but only one has successfully met the means test criteria, or

where several claimants have successfully met the means test and

have all died or do not qualify as tenants any longer, then when and

each time that the last person who satisfied the income and capital

criteria of the means test ceases to be a tenant, the means test shall

be carried out afresh in respect of the other persons holding the

tenancy in solidum and for the purposes of any subsequent means

test carried out in terms of this regulation, the “relevant period”

shall be calculated with reference to the date when the said person

ceased to be a tenant.

€0.54