DIR 08/22 | Tender on Property Valuations issued by CFR

The Council of the Kamra tal-Periti has been notified of a tender issued by the Commissioner for Revenue with reference SPD7/2021/081 named “SERVICES – FRAMEWORK AGREEMENT FOR THE PROVISION OF PROFESSIONAL SERVICES OF PERITI TO PROVIDE VALUATIONS OF PROPERTIES TO THE COMMISSIONER FOR REVENUE (CFR)”.

The tender stipulates that “[v]aluations of properties is capped at a fixed fee of twenty-five Euro (€25.00) excluding VAT”. These are unacceptable terms, which undermine the scope of the due diligence and research necessary for the preparation of a valuation report, as well as underestimate the associated liabilities.

 

In view of the above, the Council is hereby instructing all Periti not to submit bids for this tender.

Failure to abide with this Directive will result in disciplinary action.

 

Perit André Pizzuto
President

 

 

DIR 04/22 | Transfer of Commissions

Explanatory Note

The transfer of commissions, projects and tasks from one perit to another is generally a delicate and potentially complex transition which can give rise to a number of issues related to ethics, commercial interests, and intellectual property rights.

In 2009, the Council of the Kamra had, at the behest of the General Meeting, issued the Change of Perit Directive that sought to govern the transition from an ethical perspective. The focus at the time was not to stifle the possibility for the incoming periti from delivering their professional services and not to unduly harm clients who may be victims of vexatious requests for payments from outgoing periti. As a result, Directive 04/09 had stipulated that outgoing periti must hand over projects to the incoming perit even if there are outstanding payments due.

Over time, however, the original intentions of the 2009 directive were thwarted to the point where periti frequently ended up not getting paid for their services by their clients, who exploit the directive to move projects from one perit to another, sometimes more than once, to avoid paying for professional services.

This directive seeks to strike a fairer balance between the rights of periti to get paid, and the protection of clients from vexatious claims for payment.

It is important to underscore that the rights and obligations outlined below pertain exclusively to the realm of professional and ethical conduct, and do not overrule or substitute civil law. It is thus recommended that in exercising the professional rights enunciated below, periti seek legal advice to ensure they do not expose themselves to civil claims for damages.

Members of the profession are also notified that this Directive was vetted by the Kamra’s legal advisors.

 

Directive

 

The Council of the Kamra tal-Periti hereby gives notice to all members of the profession of this Directive governing the transfer of commissions, or engagements to provide professional services, from one perit (or partnership of periti) to another.

 

This Directive outlines the processes to be followed in such cases, as well as the relative rights and obligations of the periti involved, and matters relating to liability.

 

Directives DIR 04/09, DIR 03/19 and Circular CIR 02/09 are being hereby repealed.

 

 

1. PROCESSES

 

1.1 When a development application is still ongoing

When a commission is terminated during the processing of a planning application, the outgoing perit shall, in addition to the client and the Kamra, also notify the Planning Authority via eApps, requesting immediate suspension of the planning application process in terms of S.L. 552.13 reg 12 (1) to provide sufficient time for:

  • the client to identify another perit;
  • the outgoing and incoming periti (or partnership/s of periti) to satisfy their respective obligations as set out in this Directive;
  • the compilation and submission of any forms that may be prescribed by the Planning Authority.

 

1.2 When works are underway

When a commission is terminated after construction works have commenced, the outgoing perit shall, in addition to the client, also notify the Kamra tal-Periti, the Building & Construction Authority[1], the Planning Authority[2], and the Commissioner of Police[3], as well as the Superintendence of Cultural Heritage[4], where applicable, to ensure that no works proceed without the general supervision of a perit, and the necessary forms as may be prescribed by the Building & Construction Authority, Planning Authority, and any other relevant statutory bodies, are formally filed[5].

 

1.3 In all other cases

In all other cases where the statutory processes described above do not apply, the provisions in Sections 2 and 3 only shall be applicable.

 

 

2. RIGHTS & OBLIGATIONS OF THE OUTGOING PERIT

 

2.1 Right to refuse release

A perit may refuse to release a commission in the following circumstances:

a) if the termination is being initiated by the client in cases where the perit has issued legitimate instructions to safeguard public safety, structural integrity of buildings, the protection of cultural heritage and the environment, compliance with planning permit conditions, and/or adherence with laws, regulations, directives and codes.

 

b) if the perit has not been remunerated in accordance with the terms set out in a written agreement[6] with the client.

 

Provided that if any of the above circumstances exist, the perit shall immediately notify the Kamra providing details of such circumstances.

Provided further that once the outgoing perit has been remunerated, or a final decision is reached by a Court or other adjudicating body, the outgoing perit shall release the commission to the incoming perit and proceed with the handover in accordance with section 2.3.

Provided further that if no circumstances as described above exist, the perit shall not withhold the release of his commission unless otherwise authorised by the Council of the Kamra tal-Periti.

 

2.2 Obligation to notify

The outgoing perit shall in all circumstances, follow the processes set out in section 1 of this directive, as applicable.

Provided further that if the commission is being terminated by the outgoing perit, s/he shall keep a record of the relative written notification to the client of the termination.

 

2.3 Obligation to provide handover

Upon being notified in writing by the incoming perit that s/he was engaged by the client to take over the commission, the outgoing perit shall provide the incoming perit a full handover within a reasonable amount of time, which handover shall include information about the design, site conditions, site survey, the client brief governing the services s/he had hitherto provided, photographs of the works, instructions and reports about the works, communication with the various authorities until the time the original perit was still entrusted with the commission, and any other relevant information necessary to safeguard public safety, structural integrity of buildings, the protection of cultural heritage and the environment, compliance with planning permit conditions, and/or adherence with laws, regulations, directives and codes, as may be applicable depending on the nature of the commission.

Provided that such handover excludes the transfer of intellectual property belonging to the original perit, including any digital information such as CAD drawings, 3D models, and other similar data, unless agreed to by the outgoing perit at his/her discretion or as may have agreed in a prior written agreement between the outgoing perit and the client.[7]

Provided further that the outgoing perit may request payment for the transfer of his/her intellectual property, unless otherwise specified in a written agreement between the original perit and the client.

Provided further that the outgoing perit may request additional remuneration and/or termination fees from the client to provide a handover as long as this is already provided for in the written agreement.

 

3. RIGHTS & OBLIGATIONS OF THE INCOMING PERIT

 

3.1 Obligation to notify

Upon being approached by the client to take over the commission from another perit, the incoming perit shall notify in writing the outgoing perit of this requesting the initiation of the handover process.

 

3.2 Obligation to refrain from taking over a commission

A perit shall refrain from accepting to take over a commission originally commenced by another perit in the following circumstances:

 

a) If the original perit is being substituted for issuing legitimate instructions to a contactor to safeguard public safety, structural integrity of buildings, the protection of cultural heritage and the environment, compliance with planning permit conditions, and/or adherence with laws, regulations, directives and codes.

 

b) If the original perit has not been remunerated in accordance with the terms set out in a written agreement with the client.

Provided that if no such written agreement exists, the incoming perit will not be impeded from taking over the commission as long as other sections of this directive are followed.

 

c) If the incoming perit has not notified the original perit in writing and requested a comprehensive handover from the outgoing perit.

 

For the purposes of this Directive, taking over a commission shall include the submission of Change of Perit Forms, or other equivalent forms, to any authority. Incoming periti are prohibited from filing such forms.

The Council of the Kamra tal-Periti shall consider any actions by a perit to take over the commission of another perit before resolving such disputes as constituting “supplanting” in terms of Provision 4 of the Code of Professional Conduct.

Provided that an incoming perit shall not be impeded from taking over a commission, if the outgoing perit chooses to waive his/her rights outlined in section 2.1.

 

4. PROFESSIONAL LIABILITY WHEN TRANSFERRING COMMISSIONS

4.1 Under no circumstance shall a transfer of a commission constitute the transfer of liabilities between periti (or partnerships of periti).

4.2 The outgoing perit shall remain liable for the professional services s/he has completed until the date of the transfer becomes effective.

4.3 The incoming perit shall be liable for the professional services s/he provides from the date the transfer becomes effective onwards.

4.4 The handover information should be sufficiently detailed to clearly demarcate the liabilities of both outgoing and incoming periti, and is to include a clear indication of all services rendered and works erected by the effective termination date.

 

Perit André Pizzuto
President

 

[1] Notification to the BCA can be effected via eApps (Avoidance of Damage tab) or via email [email protected]

[2] Notification to the PA can be effected via eApps (Submit Correspondence tab)

[3] Notification to the Commissioner of Police can be effected via email on [email protected]

[4] Notification to the SCH can be effected via email on [email protected]

[5] The PA’s Change of Perit form and the BCA’s Change of Responsibility form are to be submitted by the outgoing perit.

[6] For the purposes of this Directive, a written agreement, which can be in the form of a contract, letter of engagement, or quotation approval (including via email), shall include as a minimum:

  • confirmation that the client has accepted the perit’s offer to provide clearly specified services;
  • the remuneration the perit will receive from the client in exchange for the services agreed upon;
  • the date of such agreement.

[7] Periti are advised to refer to Directives DIR 01/15 and DIR 02/18 for further detail on intellectual property rights held by periti.

 

 

 

DIR 01/21 | Default design assumptions in relation to Servitudes

The manner in which property-related servitudes (or easements) are created and extinguished is set out in Book Second – Part I – Title IV of the Civil Code, Cap 16. This section of the Law governs, among other things, the minimum distance of seventy-six centimetres (76cm) from the party wall dividing two tenements in respect of windows [Art. 443 (1)], balconies [Art. 443 (2)] and excavations [Art 439].

When designing new buildings or the extension or alteration of existing buildings, Periti are to assume that the third-party servitudes upon the design site have NOT been waived or otherwise extinguished, unless their client instructs otherwise in writing.

Provided that periti will not be held professionally liable if their client makes a false declaration or issues incorrect instructions in this respect.

Provided further that the term “design” shall include the preparation of architectural drawings, the preparation and submission of planning application drawings, and/or the preparation and issuance of construction drawings and other related documentation.

 

 

Perit André Pizzuto
President

 

DIR 11/20 | COVID-19 Pandemic: Vulnerable Individuals & Site Inspections

 

The Kamra tal-Periti is hereby giving notice to all members of the profession of a Directive that has been approved by the Council with regard to:

 

  • Periti considered as Vulnerable Individuals;
  • Third parties considered as vulnerable individuals; and
  • General provisions regarding site inspections and travel between the Islands.

Directives 08/20 and 09/20 are hereby repealed, and replaced by this Directive.

 

This Directive has been endorsed by the Superintendent of Public Health

 

1. Periti considered as Vulnerable Individuals

Note: This part of the Directive is practically identical to that previously covered by Directive 08/20, except for the new procedure in Point (iii) and some amendments to the notification forms.

 

Vulnerable individuals, as defined by Legal Notice 111 of 2020, are prohibited from leaving their residence except for certain essential needs.

In view of such restrictions, and until further notice, periti in the above categories are to immediately notify their clients of the restrictions imposed on them. In addition periti affected by these restrictions are to follow the procedures outlined below.

  1. For all works where the closure of the construction site[1] does not pose any risk of danger or damage to the site itself or adjacent third parties[2], immediately submit a Notification COVID-19 KTP-01 (Vulnerable persons)_no risk using the template provided.
  2. For all works where the closure of the construction site poses a risk of minor damage to the site and/or adjacent third parties, immediately submit a Notification COVID-19 KTP-02 using the template provided. In this case, the Developer[3] is to be notified to forward such Notification to all affected third parties. It is recommended that you advise the Developer and their appointed Contractor/s to also submit to their respective insurance providers.
  3. For works where the closure of the construction site poses a risk of significant damage to, and/or a risk to the structural stability of, the site and/or adjacent third parties, immediately submit a “Request for exemption from mandatory quarantine” from the Superintendent of Public Health, through this link. In the section titled “Applicant’s reason/s for request of exemption” state “as per enclosed declaration” and submit the form. Upon receving an acknowledgement, submit the Request for dispensation COVID-19 KTP 03_(Vulnerable persons)_risk to structural stability or significant damage using the template provided to [email protected] and to all the entities listed in the template. In this case, no works that require the direction of the perit are to proceed until the dispensation is issued from the Superintendent of Public Health, and thereafter works are to proceed strictly in accordance with the content of the request for dispensation. In this case, the Developer is to be notified to inform any affected third parties, and once dispensation is received the perit is to inform all the entities to whom the Request outlined above was submitted. Once the works for which dispensation has been granted are complete, the perit is to proceed in accordance with points 1 or 2 accordingly.
  4. For works outlined in point 3 above, and where the perit is minded to not request dispensation from the Superintendent in view of the overriding reasons of public health, the perit is to immediately contact the Kamra tal-Periti for further guidance, outlining the sites which pose concern and the proposed way forward accordingly.

With respect to the cases outlined in point 3 above, periti are also encouraged to contact the Kamra tal-Periti if they require any specific guidance depending on the nature of the works under way.

The relevant notices are to be issued on your letterhead and may be amended accordingly depending on the specific situation.

In addition, in all cases, the Project Supervisor should be notified so s/he may ensure that the site is sealed off to prevent access by unauthorised persons.

With respect to periti who live with people in these vulnerable groups, while there is currently no restriction on their gong out to work, it is advisable to prepare yourselves for such eventuality.

 

2. Third parties considered as vulnerable Individuals

Note: This part of the Directive is practically identical to that previously covered by Directive 09/20, except for the amended procedure in Point (iii) and some changes to the notification forms.

 

Vulnerable individuals, as defined in Legal Notice 111 of 2020, are prohibited from leaving their place of residence except for essential needs. In view of such restrictions, which are intended to safeguard the health of the persons concerned, the Kamra tal-Periti is hereby issuing the following Directives:

  1. Prior to carrying out any inspections for the purposes of preparing condition reports before the commencement of works or property valuations or any other reason which requires access to any property, periti are to ask their client to obtain a declaration from the owner of the property to be inspected as to whether or not the property is occupied by any person in the categories stated in the Legal Notice.
  2. No inspections for the purposes outlined above are to be undertaken under any circumstances if the property in question is occupied by persons in the categories listed in the Legal Notice.
  3. In the case of inspections that are required for the purposes of assessing potentially dangerous structures, either as a result of lack of maintenance or as a result of works underway on adjacent sites or any other reason whereby damage to the structure has been reported to the perit by the affected party, the perit is to request dispensation from the Superintendent of Public Health to carry out such inspection using the template Request for dispensation COVID-19 KTP 04_(Vulnerable persons)_inspections of property. The request is to be submitted to the Superintendent of Public Health on [email protected], the Commissioner of Police, the Kamra tal-Periti, your Client and your Professional Indemnity Insurance provider, as well as others as you may deem appropriate.

 

No inspections are to be carried out until the relevant clearance is issued by the Superintendent of Public Health. Once such dispensation is received, the perit is to notify accordingly all the entities listed in the Request form, and is to proceed with the inspection accordingly.

 

3. General recommendations regarding site inspections and travel between the Islands

 

In all cases where inspections are required to be carried out in third party property, it is recommended that periti follow these precautions:

  • Request that not more than one person is present in the property during the inspection, whenever possible;
  • Request that all windows and doors (internal and external) are kept open to avoid having to touch surfaces;
  • Request that you are allowed to inspect the damaged area without interruptions to limit your presence within the property, and that a distance of 2m is maintained between you and the person showing you around;
  • Carry your own sanitiser spray or gel, and use it before entering and after leaving the property.

Legal Notice 112 of 2020 stipulates that “in public spaces, groups of more than three (3) persons are prohibited including in queues and bus stops …” Although construction sites are not regarded as “public spaces”, it is recommended that this measure is implemented also on construction sites.

With respect to travel between Malta and Gozo, it is to be noted that this is currently permitted for work-related reasons as per Legal Notice 118 of 2020. Travellers will be required to make a declaration to this effect upon embarcation.

The Kamra tal-Periti is currently working with the Superintendent of Public Health to issue more detailed guidelines regarding safety on construction sites at this time. These are planned to be concluded next week.

 

Perit Simone Vella Lenicker
President

 

[1] For the purposes of this Directive a “construction site” means any open site where ongoing works involve demolition, site clearance, excavation, construction, finishes and/or services, and which are being carried out under your direction;

[2] For the purposes of this Directive “adjacent third parties” means any third party and/or their property and includes private and/or public third parties as well as the general public;

[3] For the purposes of this Directive “developer” has the same meaning ascribed to it in Legal Notice 136 of 2019.

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DIR 09/20 | COVID-19 Pandemic: Third parties considered as vulnerable Individuals & social distancing

 

The Kamra tal-Periti is hereby giving notice to all members of the profession of a Directive that has been approved by the Council with regard to third parties considered as vulnerable individuals, as well as recommendations regarding social distancing on construction sites.

 

Third parties considered as vulnerable Individuals

Reference is made to Legal Notice 111 of 2020, which prohibits vulnerable individuals, as defined therein, from leaving their place of residence. In view of such restrictions, which are intended to safeguard the health of the persons concerned, the Kamra tal-Periti is hereby issuing the following Directives:

 

  1. Prior to carrying out any inspections for the purposes of preparing condition reports before the commencent of works or property valuations or any other reason which requires access to any property, periti are to ask their client to obtain a declaration from the owner of the property to be inspected as to whether or not the property is occupied by any person in the categories stated in the Legal Notice.

 

  1. No inspections for the purposes outlined above are to be undertaken under any circumstances if the property in question is occupied by persons in the categories listed in the Legal Notice.

 

  1. In the case of inspections that are required for the purposes of assessing potentially dangerous structures, either as a result of lack of maintenance or as a result of works underway on adjacent sites or any other reason whereby damage to the structure has been reported to the perit by the affected party, the perit is to request dispensation from the Superintendent of Public Health to carry out such inspection using the template Request for dispensation COVID-19 KTP 04_(Vulnerable persons)_inspections of property. The request is to be submitted to the Superintendent of Public Health, the Commissioner of Police, the Kamra tal-Periti, your Client and your Professional Indemnity Insurance provider, as well as others as you may deem appropriate. Contact details are inside template.

 

No inspections are to be carried out until the relevant clearance is issued by the Superintendent of Public Health.

 

Social distancing

Once clearance is received from the Superintendent of Public Health in terms of point 3 above,  it is recommended that periti follow these recommendations, which are also applicable for any inspections to be carried out in third party property:

 

  • Request that not more than one person is present in the property during the inspection, whenever possible
  • Request that all windows and doors (internal and external) are kept open to avoid having to touch surfaces
  • Request that you are allowed to inspect the damaged area without interruptions to limit your presence within the property, and that a distance of 2m is maintained between you and the person showing you around
  • Carry your own sanitiser spray or gel, and use it before entering and after leaving the property

 

The COVID-19 Bulletin 15 states that the Police “have the right to intervene on groups of more than 5 people, and disperse them in such a way as to leave 2 metres between each one of them.” It is recommended that this measure is implemented on construction sites, and that you forward the link to all concerned so as to be observed at all times.

 

Perit Simone Vella Lenicker

President

 

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DIR 08/20 | COVID-19 Pandemic: Periti within vulnerable groups // UPDATED

 

UPDATED: 28/03/2020

On Thursday 26th March 2020, the Deputy Prime Minister and Minister for Health Mr Chris Fearne gave notice of new restrictions that will be brought into force on Saturday 28th March 2020.

These measures were brought into force through Legal Notice 111 of 2020, and prohibit vulnerable individuals from leaving their place of residence, as outline therein.

These measures include an order prohibiting vulnerable individuals from leaving their place of residence. The list of vulnerable groups published in the COVID Bulletin Issue No 15 includes:

 

  • Are over 65 years old
  • Are pregnant
  • Suffer from chronic illness
  • Are insulin dependent diabetics
  • Are on biological medication
  • Had chemotherapy in the last six months
  • Are undergoing immunosuppression (eg. had a transplant or HIV treatment)
  • Are on renal dialysis
  • Have respiratory problems and needed treatment in the last year
  • Had cardiac problems in the last six months
  • Are on oral steroids

 

In addition, those who live with people in this category will have to observe the lockdown or find alternative accommodation.

In view of such restrictions, and until further notice, periti in the above categories, or who live with people in such categories, are to immediately notify their clients of the restrictions imposed on them. In addition periti affected by these restrictions, and who are not in a position to delegate their responsibilities, are to follow the procedures outlined below:

  1. For all works where the closure of the construction site[1] does not pose any risk of danger or damage to the site itself or adjacent third parties[2], immediately submit a Notification COVID-19 KTP-01 (Vulnerable persons)_no risk using the template provided.

 

  1. For all works where the closure of the construction site poses a risk of minor damage to the site and/or adjacent third parties, immediately submit a Notification COVID-19 KTP-02 using the template provided. In this case, the Developer[3] is to be notified to forward such Notification to all affected third parties. It is recommended that you advise the Developer and their appointed Contractor/s to also submit to their respective insurance providers.

 

  1. For works where the closure of the construction site poses a risk of significant damage to, and/or a risk to the structural stability of, the site and/or adjacent third parties, immediately submit a Request for dispensation COVID-19 KTP 03_(Vulnerable persons)_risk to structural stability or significant damage using the template provided. In this case, no works that require the direction of the perit are to proceed until the dispensation is issued from the Superintendent of Public Health, and thereafter works are to proceed strictly in accordance with the content of the request for dispensation. In this case, the Developer is to be notified to inform any affected third parties. Once the works for which dispensation has been granted are complete, the perit is to proceed in accordance with points 1 or 2 accordingly.

 

  1. For works outlined in point 3 above, and where the perit is minded to not request dispensation from the Superintendent in view of the overriding reasons of public health, the perit is to immediately contact the Kamra tal-Periti for further guidance, outlining the sites which pose concern and the proposed way forward accordingly. Reference is also made to Directive 07/20 in this regard.

 

With respect to the cases outlined in point 3 above, periti are also encouraged to contact the Kamra tal-Periti if they require any specific guidance depending on the nature of the works under way.

 

In all cases, the relevant Notices are to be submitted to the following:

 

Superintendent of Public Health:

[email protected]

 

Building and Construction Agency:

Upload to eApps under the Avoidance of Damage to Third Parties tab

 

Planning Authority:

Upload to eApps under Correspondence

 

Commissioner of Police:

Via email to [email protected]

 

Local Council of the Locality:

Via email – refer to https://localgovernment.gov.mt/en/lc/Pages/Local-Councils-Landing-Page.aspx/

 

Kamra tal-Periti:

[email protected]

 

Your Professional Indemnity Insurance provider:

As applicable

 

Additionally to (as applicable):

Client and/or site owner/s; Mason; Contractor/s; Project Supervisor in terms of LN 88 of 2018; any appointed Consultants

 

The relevant notices are to be issued on your letterhead and may be amended accordingly depending on the specific situation.

 

In addition, in all cases, the Project Supervisor is to be specifically instructed to ensure that the site is sealed off to prevent access by unauthorised persons.

 

 

As at the time of issuance of this Directive, the relevant Legal Notice had not as yet been published by Government. In view of this, periti are requested to follow further notifications from the Kamra that may slightly alter or affect this Directive once the Legal Notice is published.

With respect to periti who live with people in these vulnerable groups, while there is currently no restriction on their gong out to work, it is advisable to prepare yourselves for such eventuality.

 

Perit Simone Vella Lenicker

President

[1] For the purposes of this Directive a “construction site” means any open site where ongoing works involve demolition, site clearance, excavation, construction, finishes and/or services, and which are being carried out under your direction;

[2] For the purposes of this Directive “adjacent third parties” means any third party and/or their property and includes private and/or public third parties as well as the general public;

[3] For the purposes of this Directive “developer” has the same meaning ascribed to it in Legal Notice 136 of 2019.

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DIR 07/20 | Change of Perit in cases of compliance with Orders and Guidance issued by the Superintendent of Public Health during the COVID-19 Pandemic

The Kamra tal-Periti is hereby giving notice to all members of the profession of a Directive that has been approved by the Council.

 

Periti are hereby authorised to refuse to sign a Change of Architect Form or to handover a project or assignment to another Perit in cases where they are following orders or guidance issued by the Superintendent of Public Health as part of the efforts to contain the spread of the COVID-19 pandemic in the Maltese Islands and as a result of which the former Perit is in any way reasonably prevented, restricted, limited or delayed from fulfilling his/her professional obligations in part or in full.

The Council of the Kamra tal-Periti will consider any actions by another Perit to take over a project or assignment in such circumstances as constituting “supplanting” in terms of Provision 4 of the Code of Professional Conduct.

Periti are reminded that the Council of the Kamra tal-Periti is empowered to take appropriate action in terms of the Periti Act in case of breach of this Directive.

 

Perit Simone Vella Lenicker
President

DIR 01/20 | Advertising and Marketing of Professional Services

 

The Kamra’s Directive 01/19 provides a brief background to the issue of advertising of professional services pursuant to the removal of Paragraph 3 of the Code of Professional Conduct in 2010, and to the requirements of Article 24(2) of the Services in the Internal Market Directive (2006/123/EC) which stipulates that:

“Member States shall ensure that commercial communications by the regulated professions comply with professional rules, in conformity with Community law, which relate, in particular, to the independence, dignity and integrity of the profession, as well as to professional secrecy, in a manner consistent with the specific nature of each profession. Professional rules on commercial communications must be non-discriminatory, justified by an overriding reason relating to the public interest and proportionate.

Commercial communication may therefore be subject to compliance with professional rules concerning the independence, dignity and honour of the profession, professional secrecy and fairness towards clients and other members of that profession.

Since a prohibition to advertise a certain professional activity could restrict possibilities for professionals to make themselves known and to promote their services, it would constitute a restriction on the freedom to provide services. Professional rules therefore cannot impose a general and absolute prohibition of any form of advertising. Rather, a balance is to be sought between the objective of protecting the public and the profession itself, often the impetus behind such restrictions, with the rights of professionals to freely provide their services to the public.

All Warrant Holders authorised under the provisions of the Periti Act (Chapter 390 of the Laws of Malta) to provide architectural and engineering services shall abide by this Directive.

 

General Principles

  • Warrant Holders shall not communicate or promote or represent themselves or their professional services in a false or deceptive manner; nor shall they allow others to do so, whether or not acting on their behalf.
  • The Council of the Kamra tal-Periti will investigate alleged breaches in line with the afore-mentioned principles, and with the guidelines published concurrently with this Directive.
  • Any actions by Warrant Holders which are found to be in breach of this Directive will be considered as conduct which is discreditable to the profession, as provided for in the Periti Act.

 

 

 

Perit Simone Vella Lenicker

President

 

DIR 12/19 | Legal Notice 136 of 2019 & Legal Notice 180 of 2019

Legal Notice 136 of 2019 regarding Avoidance of Damage to Third Party Property Regulations, 2019, came into force on the 25th June 2019. This was later amended through Legal Notice 180 of 2019, which came into force on the 29th July 2019.

In the period between the publication of both Legal Notices, the Council of the Kamra tal-Periti worked incessantly to ensure that the interests of the profession are safeguarded, and that public safety is placed at the forefront.

Although the Legal Notice still does not reflect all the changes requested by the Kamra, significant progress has been made, as outlined in detail in Circular 11/19. The Council is of the opinion that all the progress outlined in said Circular, and particularly Government’s recorded commitment to deliver on all the outstanding points through the Letter of Commitment, address many of the concerns raised by the profession.

 

 

The above is considered sufficient for the Council to issue the following Directives:

  1. Periti are to immediately inform their clients of the coming into force of Legal Notice 136 of 2019 if they have not already done so, and to advise their clients also of the coming into force of Legal Notice 180 of 2019, and to advise them to bring themselves and the works in line before any works can continue.
  2. If periti become aware that works are ongoing without the provisions of the Legal Notice being in place, they are to immediately notify in writing the Building Regulation Office and the Commissioner of Police, keeping the Kamra tal-Periti in copy.
  3. The Building Regulation Office (BRO) will be publishing a list of competent persons as per Schedule 3 as amended (see LN 180 of 2019) who register their interest to provide the service of STO. The register is intended to provide the general public with a list of periti and others who are authorised to provide this service. Further details will be announced shortly.
  4. Periti are advised that the forms required to be submitted to the BRO through the PA eApps portal are in the process of being amended, in consultation with the Kamra, in order to bring them in line with the amendments enacted through Legal Notice 180 of 2019, and with other considerations made by the Kamra. Periti are advised to await further direction before proceeding to upload any forms.
  5. Periti engaged under Design and Build Contracts should seek legal advice regarding the potential implications of the Legal Notices on their responsibilities and indemnity. The Kamra will be seeking additional legal advice on the position of such periti in the coming weeks.
  6. Periti in full or part time employment with Contractors or Developers are advised to seek legal advice on their position. Their position directly within the Contractor’s setup places additional responsibilities on them in terms of the Legal Notice, and these need to be clarified. The Kamra tal-Periti will be addressing this situation separately, as already discussed with a number of such periti.
  7. Periti employed in the Public Service should seek guidance from the Union Periti u Inginiera fis-Servizz Pubbliku. The Kamra tal-Periti has already met with the Union prior to the issuance of Legal Notice 136 of 2019 and will be scheduling another meeting with such Union in the coming weeks.
  8. Directive 03/2019 and Directive 04/2019 remain in force.
  9. Directive 06/19 is hereby repealed.

 

The repeal of Directive 06/19 should not be interpreted as an automatic obligation on periti who are in full or part time employment with Contractors or Developers to take on this role. Any undue pressure on such periti to assume this role is to be reported to the Kamra tal-Periti.

This Directive is to be read in conjunction with Circular 11/19. In particular, it is noted that the concurrent undertaking of the role of perit in charge and STO by the same perit or partnership of periti on the same project is considered to give rise to issues of conflict of interest, and thus to a potential breach of the Code of Professional Conduct. Periti are invited to communicate with the Kamra tal-Periti for further guidance in relation to specific situations. Any undue pressure by Contractors or Developers for periti to take on the role of STO is to be reported to the Kamra tal-Periti.

 

 

 

Perit Simone Vella Lenicker

President

 

DIR 06/19 | Legal Notice 136 of 2019

Legal Notice 136 of 2019 regarding Avoidance of Damage to Third Party Property Regulations, 2019, came into force on the 25th June 2019.

As outlined in Circular 05/2019, the Legal Notice as published does not address the concerns raised by the profession at its EGM of the 21st June 2019.

Furthermore, it does little to guarantee public safety primarily because it further confuses the responsibilities on site. This, coupled with the fact that the requirement for registration and licencing of contractors has not been brought into force, results in a situation where effectively the Site Technical Officer (STO) is being made to bear the shortcomings of Government to regulate the sector.

The myriad of implications that this Legal Notice raises are widespread and very delicate. As a result of the rushed coming into force of this Legal Notice, without any lead time for studying and understanding, the serious ramifications of its provisions cannot be quantified. This includes implications regarding Professional Indemnity Insurance with respect to compliance with the Legal Notice. It also makes no provision for existing contractual obligations between periti and their clients, and between contractors and developers qua owners. The implications of what happens if these existing contracts are in conflict with the Legal Notice may be serious, and may also possibly lead to litigation.

The main legal function of the Kamra tal-Periti is to safeguard “the wellbeing and the progress of the profession”, and is constituted “for the advancement of the profession, the defence of its rights and for keeping high its prestige,” while its mission statement is to “support members of the profession in achieving excellence in their practice of architecture and engineering in the interest of the community.

Thus:

  • In its capacity to ensure that all members of the profession are safeguarded in discharging their services to their clients, and in view of the provisions of the Legal Notice which no member of the profession has had adequate time to assess and fully understand the implications thereof; and
  • In light of the approval of Motion 6 by the last Extraordinary General Meeting of the Kamra tal-Periti, which empowered the Council to “issue any Directives as it deems necessary in relation to the matters discussed during this Extraordinary General Meeting, and to consider a breach of said Directives by Warrant Holders to constitute a breach of the Code of Professional Conduct”;

 

Now, therefore, the Council of the Kamra tal-Periti is hereby issuing the following Directives:

  1. Periti are to immediately inform their clients of the coming into force of the Legal Notice, and to advise them to bring themselves and the works in line before any works can continue.
  2. Periti are notified that upon the coming into force of the new regulations, any applicable works, including demolition, excavation and construction, which are not in line with all its provisions are effectively suspended. This includes works which were previously exempt under Legal Notice 72 of 2013. In view of this, periti are to issue notifications of suspension of works to their clients and to the contractors immediately. If periti become aware that works are ongoing without the provisions of the Legal Notice being in place, they are to immediately notify in writing the Building Regulation Office and the Commissioner of Police, keeping the Kamra tal-Periti in copy.
  3. Until further notice, no perit is to assume the position of STO as provided in the Regulations, unless they are currently contractually bound to do so.
  4. Periti who were contractually bound to take on the role of STO as described in the Legal Notice prior to the coming into force of the Legal Notice, and as long as this is clearly stipulated in their contract of employment / engagement, and they are fully cognisant of any additional legal implications being placed on them by the Legal Notice, are to immediately advise the Kamra of their position.
  5. Periti who are approached to submit the Site Management Responsibility Form as outlined in the PA Notice issued on the 25th June 2019, are to immediately inform the Kamra tal-Periti of said request, and to refrain from uploading it until they receive further direction from the Kamra tal-Periti.

In addition, the Kamra tal-Periti recommends that:

  1. Periti engaged under Design and Build Contracts should seek legal advice regarding the potential implications of the Legal Notice on their responsibilities and indemnity; and
  2. Periti employed in the Public Service should seek guidance from the Union Periti u Inginiera fis-Servizz Pubbliku. The Kamra tal-Periti has already met with the Union prior to the issuance of the Legal Notice and will be scheduling another meeting with such Union in the coming days.

Directives 03/2019 and 04/2019 remain in force.

 

Perit Simone Vella Lenicker

President