Court allows landlord to eject statutory tenant for redevelopment, suspending enforcement for two months due to tenant's age and disability.

[*418] 1978 February 10

(PIKIS, P.D.C.)

IN THE DISTRICT COURT OF LARNACA

Zenon A. Kousoulou,

Applicant,

and

(Eftychia Constantinou,

Respondent.

(Rent Application No. 72/77).

Landlord and tenant Statutory tenancy Notice to quit Need not be personally served on the tenant Section 16(1)(h) of the Rent Control Law, 1975 (36/75).

Landlord and tenant Statutory tenancy – Premises reasonably

required for demolition and reconstruction Section l6(l)(h) of the Rent Control Law, 1975 (36/75) What amounts to a reasonable need

a question of fact which must be resolved in a broad common sense way Fact that building permit in the name of landlord’s predecessor-in-title irrelevant because a building permit runs with the land.

A. Koukounis, for the Applicant.

A. Mathicolonis, for the Respondent.

JUDGMENT

The following judgment was delivered by:-

PIKIS, P.D.C. : The respondent, an aged woman [*419] afflicted with deafness, is a statutory tenant of the premises at 6 Andrea Strouthidou street, Larnaca, paying a monthly rental of £5. She has been in occupation of the premises for the past twelve to thirteen years.

In January 1974 the applicant bought the house by virtue of a sale agreement, exhibit 1. Following the execution of the agreement the applicant became the effective owner of the property and stood in the position of landlord of the respondent. It transpires from the evidence that the premises were primarily acquired for their building po tential considering that shortly after the execution of exhibit 1 steps were taken for the re-development of the property.

On 3rd February 1978, that is a day before the commencement of the hearing of the application the property was registered in the name of the applicant. (See, inter alia, exhibit 2), The applicant stated that his predecessor-in—title signed on his behalf and at his request the documents that were submitted for a permit to demolish and reconstruct. It is his evidence that the first permit they secured had to be abandoned because of the continuing occupation of the property by the respondent and the introduction of a new street alignment scheme that necessitated alteration of their plans for re-development, a course detrimental to the applicant because of further limitations imposed in relation to the re-development of the property. A second permit was secured on 3rd February 1979 (exh.5a) whereby permission is granted for the demolition of part of the existing premises and the construction of a shop, [*420] a garage and two lavatories.

As early as 7th October 1975 the applicant addressed a letter to the respondent through advocate Georghios Achilles, of Larnaca, produced by consent, signifying, on the part of the landlord, termination of the tenancy and inviting the respondent to vacate the premises by 11th December 1975, A second letter was addressed to the respondent, dated 26th February 1976, likewise produced by consent. Further the parties produced a notice of the post office signifying the dispatch of a registered letter, addressed to the respondent on 27th February 1976, The production by consent of exhibit 4 and the notice of the post office does signify, to my comprehension, acceptance on the part of the respondent that the aforesaid letter was sent to the respondent on 27th February 1978, Notwithstanding this admission counsel for the respondent raised the point in his final address that the evidence did not establish satisfactorily the dispatch of this letter to the respondent. Mr, Achilles, an advocate of long standing, testified that both exhibit 3 and exhibit 4 had been drafted and signed by himself on instructions from the applicant and stated chat both were enclosed in an envelope bearing his name and address, He explained the practice followed at his office in relation to the dispatch of letters. According to a minute appearing in his correspondence book, exhibit 3 had been posted on 7th October 1975, whereas no corresponding minute appears in relation to exhibit 4. But he did explain the circumstances pertinent to the dispatch of this letter which, seen in combination with the evidence of the wife of [*421] the applicant, lead me to the conclusion that Mr. Achilles handed over the letter in an envelope to the wife of the applicant who, thereafter, had posted it to the respondent by means of a registered letter, evidenced by the slip attached to exhibit 4, Mr, Achilles further testified that following one of the two letters the respondent visited him in response thereto, a fact indicating that letters addressed to 6 Strouthidou street were reaching her and added that neither of the two letters was returned, suggesting; delivery of both letters in the ordinary course of things. It is well settled that a notice to quit need not be personally served on the tenant. As stated in Woodfall On Landlord and Tenant, 27th edition, volume I,p, 989, summarizing the effect of a series of decisions, it is sufficient if the notice is left at the tenant's dwelling house.

My finding is that the respondent received both letters addressed to her and she can have no legitimate complaint on that score. Therefore, the applicant by serving on the respondent the notice

dated 26th February 1976, satisfied one of the conditions laid down by s.16(l) (η) as a prerequisite to an ejectment order,

giving the respondent three months written notice to vacate the premises.

Now I must resolve whether the applicant satisfied the remaining conditions envisaged by the law, that is whether (a) the premises are reasonably required for material alterations or rebuilding or reconstruction; and (b)whether the necessary permit has been secured. I find it more opportune to deal firstly with the second requirement owing to the brevity of the point and then proceed to examine [*422] whether the premises are reasonably required for one or more of the purposes specified by the law. The permit is in the name of the predecessor-in-title of the applicant, namely Mrs. Chloe Antoniadou and not in the name of the applicant. It has been submitted on behalf of the respondent that notwithstanding the recent decision of the Supreme Court in Lordos and Anastassiades Ltd. etc. v. District Officer, Limassol and Another

(1976) 11. J.S.C. 1635 the relevant permit is no authority for the applicant to carry out the works authorised therein in the absence of evidence that the permit had been issued before the conveyance of the property in the name of the applicant on 3rd February 1978. I find no substance in this submission for in the case of Lordos and Anastassiades (supra) it was decided that a building permit runs with the land so much so that the owner of the land for the time being can act on its provisions irrespective of the name of the permit holder. If that is the law then surely it matters not whether at the time of the issue of the permit the premises had or had not been transferred in the name of the applicant. Moreover, as a matter of practical reality it would be quite impossible for the applicant to apply for a permit before the house was registered in his name. And from the evidence before me it is manifest that Mrs. Chloe Antoniadou was at all times acting as nominee acting on behalf of the applicant.

In accordance with the decision of the Supreme Court in Yerasimou v. Andreas Rousoudiou (1974) 4 J.S.C. 433 the applicant satisfied the requirement of securing [*423] the necessary permit so long as a permit is issued a time, any time, before the hearing of the application.

It is the case for the applicant that the premises are reasonably required for purposes of demolition and recon struction. What amounts to a reasonable need is a question of fact for the Court and a series of English decisions lay down that the question must be resolved in a broad common sense way in the same way that men of the world face their affairs in the span of daily events. (See Chandler v. Strevett (1947) 1 All E.R. 164; Cumming v. Danson (1942)

1 All E.R. 653 (C. A.); Briddon v. George (1946) 1 All E.R. 609; and Rhodes v. Cornford (1947) 2 All E.R. 601 (C.A.).)

In a number of previous cases I had occasion to resolve the same question myself and analyse the matter at some

length. (See Georghiades and Others v. Lambi (1976) 8 J.S.C. 1332 and judgment in Rent Application 20/77, dated 13.10. 1977 unreported). In Aitken v. Shaw

(1933) S.L.T. the following definition was suggested:-

"A genuine present need, something more than a desire, although something much less than absolute necessity".

This is indeed a useful definition but by no means an exhaustive one and the question must invariably be decided as a matter of fact.

The respondent did not seriously dispute that the applicants are anxious to implement the redevelopment project they have in mind nor has she questioned the financial ability of the respondent to implement the scheme. [*424] There is evidence that the applicant has standing, to his credit a substantial amount of money designated for use for the redevelopment of his property.

The last point to consider is whether the implementation of this project necessitates surrender of possession toy the respondent. It is abundantly clear from the evidence of the applicant that vacant possession is essential for the implementation of their plans for redevelopment and considering the evidence of the applicant in combination with the conditions of the permit (exh.5a), I find as a fact that vacant possession of the premises is a prerequisite to the implementation of the conditions of the permit, namely demolition of part of the building and erection thereon of the premises authorized by exhibit 5(a).

Thus I find that the applicant has established his case and he is entitled to an ejectment order. In proceedings brought under section 16(1)(η) of the Rent Control Law, 1975 the amenity of rehousing the respondent is not in issue. This matter was touched by counsel no doubt in their effort to assist

the Court in the exercise of its discretionary powers under s.16(2), of the same law, to suspend an ejectment order for a period that

is deemed appropriate in all the circumstances of the case. I accept the evidence of the applicant that their suggestions to the respondent for alternative accommodation have been consistently refused, the respondent evidently showing a marked disinclination to vacate the premises. She is an aged woman suffering from a serious affliction. I feel considerable sympathy for her difficulties; but I cannot deprive [*425] the applicant of possession of his property for any considerable interval of time bearing in mind that she was notified to vacate the premises nearly two years ago. However, as an act of humanity I shall suspend the execution of the order for a period of two months in order to enable the respondent to make alternative arrangements for her accommodation.

In the result, the respondent is ordered to vacate the premises. The enforcement of the ejectment order is suspended for two months. Ho order as to costs.

Respondent ordered to

vacate premises within

two months.