Court orders tenant to vacate statutory tenancy due to landlord's reasonable need and tenant's failure to find alternative accommodation.

[*40] 1978 September.

(BOYADAS, S.D.J.)

IN THE DISTRICT COURT OF NICOSIA

Panayiota Antoniou,

Applicant,

v.

Yiannakis papatheodotou,

Respondent.

(Rent Application No. 354/78).

Landlord and tenant - Statutory tenancy - Recovery of possession - Premises reasonably required for possession by the landlord - Section l6(1)(g) of the Rent Control Law, 1975 (Law 36/75) - Landlord's intention - Reasonableness of the requirement - General issue of reasonableness - Hardship - Alternative accommodation - Tenant failing to avail himself of - Greater hardship shall result to landlord if ejectment order is not made.

A.E. Georghiades, for the Applicant.

M. Iacovou, for the Respondent.

DECISION

The following decision was delivered by:-

BOYADJIS, S.D.J.: The applicant-landlady filed [*41] the present proceedings under Regulation 3(1) of the Rent Control Regulations claiming against the respondent-tenant possession of her house at Kakopetria which is now in the possession of the latter holding same as statutory tenant under the law. The claim for the ejectment order is based on an alleged reasonable need of the house by the landlady for residence by herself and her family. This allegation is being denied by the respondent in his statement of defence.

The history of the subject-matter tenancy begins in 1973 and the rent was then £8.- per month. Following the summer events of 1974 the landlady made repeated demands on the respondent to vacate the premises. On the 16.11.76 the parties agreed to execute a written tenancy agreement which is now before me marked exhibit No.2. It was therein agreed that the rent would be £13.- per month and the duration of the tenancy would be for one year, the respondent reserving to himself the right to vacate the premises at any prior date without paying any compensation whatsoever to the landlady. This unusual term of the tenancy agreement corroborates the allegation of the landlady that exhibit No.2 was executed in order to facilitate the respondent to vacate the premises whenever he could find alternative accommodation within the year.

The landlady is the owner of a two-storey building at Kakopetria. The house now in the possession of the respondent occupies the ground floor thereof and consists of two rooms, a kitchen, a bathroom and a W.C. On the first floor there is another house, also belonging [*42] to the landlady, consisting of 4 rooms, a kitchen, a bathroom and a W.C. Following the invasion in 1974 the landlady separated the first floor into two tenements: one consisting of two of the rooms, the kitchen, the bathroom and the W.C. The landlady leased this tenement temporarily to a refugee. She kept for herself and her family the other two rooms, one of which she turned into a kitchen which has no water supply.

The landlady’s family consists of herself, her husband and an umarried daughter who is now about 30 years old, according to her father. Even before the tragic events of 1974 the landlady and her family used to withdraw every summer to the part of the house now in their possession and lease the rest of the house now in the possession of the refugee family, to several holiday making families who wanted to spend their summer at Kakopetria, a known summer resort of the island. For the rest of the year the landlady's family occupied the whole of the first floor. In the Summer of 1974, like all other previous years, the upstairs house was thus occupied until September, 1974. Instead of retaking possession of the whole house, the landlady then elected to lease it to a refugee tenant at £20,- per month. This tenant remained in possession until the 28th June, 1975, and left after bringing into the house another refugee family for a short stay. The second family paid also £20.- per month rent and, keeping their promise, left after two months. Before doing so,

they brought in a third refugee family with five children. The landlady accepted them as her tenants also at £20.- per month

rent, acting on their assurance that they would vacate the house in two months’ time. They are still in [*43] possession. They have recently told the landlady that if and when they manage to finish their house which they started building somewhere outside Nicosia, they shall vacate her house.

From the summer, 1974, onwards the landlady thus found herself living in two rooms. She sleeps with her husband in one of the rooms and uses the second room as a kitchen and dining-room. Her unmarried daughter sleeps in this kitchen. Recently there was a gas leakage from the cooker’s pipe during the night whilst the girl was sleeping and, but for the awaking up of her parents, her life was put in serious-danger. Dish washing, etc. , has to be done in the open as there is no water supply indoors.

The tenant has a family consisting of his wife and two children aged 8 and 7 respectively, both attending the elementary school. He comes from Prodromos village where he has a house in which he stays all weekends and also during the summer. He there also owns two gardens yielding him at present small income but with good prospects for a substantially increased income in the near future. He works as a foreman in the Kakopetria mines of the Hellenic Mining Company earning £86.- net income per month less £18.- deducted each month for the repayment of a loan of £600.- owed to his employers. He has a small additional income from occasional overtime work and his wife works as a dressmaker at home earning about £15.- per month. The total present net income of the family is in the region of £100.- per month. The family is in [*44] the circumstances in a position to pay rent in the region of £20.- per month. The respondent is the owner of a Renault car.

I consider it pertinent at this stage to set out the law governing the present case. The landlady’s claim is based on s.16(1)(z) of the Rent Control Law No. 36 of 1975 which reads as follows: -

### [*45]

###

Translated in English the section reads: -

"16(1) No judgment or order for the recovery of possession of any house or shop to which this Law applies or for the ejectment of a tenant therefrom shall he given or made except in the following cases:-“

“……………………………………………………………………………………………............

“(z) Where the house or shop are reasonably required for occupation by the landlord, his spouse, his

son, daughter, son-in-law, daughter-in-law, brother or sister who are over 18 years of age and in either case the Court

considers it reasonable to give such judgment or make such order.”

“Provided that no judgment or order shall be made or given under this paragraph if [*46] the tenant satisfies the Court that, having regard to all the circumstances of the case, greater hardship would he caused by granting the order or judgment than by refusing to grant it."

"For the purposes of this paragraph the expression 'circumstances of the case' shall include the question Whether other accommodation is available for the landlord or the tenant, and the question whether the landlord purchased the house or shop after the date of the coming into operation of this Law for the purpose of gaining possession under the provisions of this paragraph".

Section 16(1)(z) of Law 36 of 1975 copies section 18(1)(g) of the Rent Control Law, Cap. 86.

In Georghios Ikossis v. Anastassia

Thoma, 21 C.L.R. p. 125, decided on s. l8(1)(g) of Cap. 86, the following statement of the law appears at p. 126 of the report:-

"Before an order for the recovery of possession of any premises covered by the Rent Control Law, 1954, can he made the Court should satisfy itself on the following three points:-“

“(a) That the landlord intends genuinely to occupy the premises in question:

“(b) That he reasonably requires the premises; and,

“(c) That the Court considers it reasonable to give such order". [*47]

The onus of proving the above three requirements is on the landlord.

(a) The landlord’s intention.

This requirement refers to the bona fide of the claim of the landlord; it requires an honest, albeit reasonable wish or desire of the landlord to have vacant possession of his premises for the purpose of occupation by himself or the other persons named in the section and not for any other purpose.

The landlady’s good faith and honesty in this respect was challenged in cross-examination. It was put to her that she made a statement to a named person to the effect that upon succeeding to evict the respondent from the house, her intention was to lease it to the aforesaid person. The landlady denied this allegation which was not pursued further by the respondent who adduced no evidence whatsoever to substantiate it. In the light of the evidence before me on this issue I am satisfied that the landlady's intentions in this respect are genuine.

(b) The reasonableness of the requirement.

The landlord must also satisfy the Court that the premises are "reasonably required" by him. The word "required", although ambiguous, bears the meaning borne by the word "needed": Ireland v. Taylor, (1949) 1 K.B. 300 C.A. The landlord need not show a "dire necessity"; he must show a "genuine present need" for the premises and. not to be "moved by considerations of preference and convenience merely .... The words reasonably required [*48] connote something more than desire although at the same time something much less than absolute necessity will do": Aitken v. Shaw (1933) S.L.T. (Sh. Ct.) 21.

In determining whether the premises are reasonably required by the landlord, the Court should take into consideration a wide range of circumstances pertaining to the landlord, including financial ones. The reasonableness in this case hinges more on the actual requirements of the landlord: Chandler v. Strevett (1947) 1 All E.R. 164. The position of the tenant, e.g. any hardship to him, is irrelevant on this issue, although it is, of course, material on the specific issue of hardship and the general issue of reasonableness.

The onus to prove that the premises are reasonably required by the landlord is not a heavy one to discharge. The evidence adduced in this case shows that the living conditions of the landlady and her family from the point of view of accommodation are unacceptable and her needs for better house accommodation are not capricious but very real and reasonable. The tenant’s allegation that the landlady may not validly be heard complaining in this respect because she chose voluntarily to live under the same conditions each summer in the past and because she chose to accept the three refugee families as her successive tenants in the circumstances hereinabove set out, cannot in any way affect the reasonableness of the landlady’s present needs.

In the light of all the evidence before me I decide this factual issue in favour of the landlady. [*49]

(C) General issue of reasonableness.

The landlord should finally satisfy the Court that it is reasonable to make the ejectment order applied for. This has been held to be an overriding requirement. The Court has to exercise its discretion in a judicial manner and have regard on the one hand to the general scheme and purpose of the enactment and on the other hand to the special conditions of the parties. "The question of what is reasonable in all the circumstances must be a difficult and, at times, almost insoluble problem on which different minds may arrive at different conclusions": Per Bucknill, L.J. in Chandler v. Strevett (supra).

A useful guide to the approach of this issue by the Court may be found in the following words of Lord Greene, M.R., in Cumming v. Danson (1942) 112 L.J. K.B. 145, at p. 147, C.A.:-

"The duty of the Judge is to take into account all relevant circumstances as they exist at the date of the hearing. That he must do in what I venture to call a broad common sense way as a man of the world, and come to his conclusion giving such weight as he thinks right to the various factors in the situation. Some factors may have little or no weight; others may be decisive".

Although, as it has already been stated above, the landlord must satisfy the Court that he "reasonably"

requires the premises, this does not render the present [*50] requirement of reasonableness mere surplusage: Shrimpton v. Rabbits, (1921) 131 L.T. 478.

The circumstances to be taken into consideration on the general issue of reasonableness of the order are of a great variety ranging from financial matters to matters of a domestic and social character. They include matters personal to both landlord and tenant but also include matters concerning the interests of the public: Crosswell v. Hodson (1951) 2 K.B. 92, C.A. Matters like the existence or non existence of an alternative accommodation. for the landlord or the tenant, the financial repercussion of an order for possession and the general conduct of both the landlord and the tenant are amongst the main considerations to be had in mind in answering the question whether it is reasonable or not to make such an order, which is a question of fact depending on the special circumstances of each given case.

Enough has already been said about the family circumstances and the needs of the tenant and the landlady. In respect of the latter I should only add that she strongly believes that time margins for her daughter’s finding a husband narrow more and more every day and that their present house accommodation makes the problem even more difficult. Her anxiety in this respect was evident throughout her evidence and, I would say, not unjustifiably.

Taking all the circumstances into consideration I had no difficulty in concluding that it is indeed reasonable for the Court to make the possession order prayed for in this case. In reaching this conclusion [*51] the social aspects of the case have greatly weighed in my mind.

The issue of hardship.

The issue of reasonableness is closely related with the issue of hardship for which provision is made in the proviso to section 16(1)(z) of the Law, because most of the circumstances to be had in mind in deciding the issue of reasonableness are also relevant in deciding the issue of greater hardship, although "in certain circumstances an order for possession might be reasonable although it in fact imposed greater hardship on the tenant than on the landlord":- per Bucknill, L.J. in Chandler v. Strevett (supra).

If the landlord brings himself within the provisions of the main part of the section by satisfying the Court of the existence of the aforesaid three requirements (see Georghios Ikosis v. Anastasia Thoma (supra)) , the proviso to section 16(1)(z) allows the tenant the right and at the same time casts upon him the duty to show that, having regard to all the circumstances of the case including the question whether other accommodation is available for the landlord or the tenant, greater hardship would be caused by granting the judgment or order than by refusing to grant it. If the tenant discharges this onus of proof the Court will not make such judgment or order against him. But if the Court is left in doubt where the greater hardship lies, the landlord's claim will succeed:- Gould v. Ammely (1939) L.J.N. C.C.R. 343. [*52]

In England there is in force rent control legislation closely similar to our section l6(1)(z) of Law 36/75. It is, for instance, the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933, section 3(1) (a) and para. (h) of the First Schedule to the Act, which applies to dwelling houses only, and was left unaffected by the Act of 1957, 6th Schedule, para. 21 .

I have considered the following four English authorities on the issue of hardship: (1) Sims v. Wilson (1946) 2 All E.R. 261 ; (2) Smith v. Penny (1946) 2 All E.R, 672; (3) Kelly v. Goodwin (1947)

1 All E.R. 810; and (4) Chandler v. Strevett (supra).

They lay down that the onus of proof of greater hardship by granting the order is on the tenant and that the question of greater hardship is primarily one of fact; that although the Court is under para. (h) of Schedule 1 of the Act of 1933 (corresponding to the proviso to our section l6(1)(z) of Law 36/75), expressly enjoined, in deciding on the issue of greater hardship, to have regard to the question whether other accommodation is available for the tenant or the landlord, this should merely be treated as being the most important of the circumstances to which regard must be had, but not as a condition precedent, or as the only fact to be considered. Furthermore, the fact that any other accommodation available to the

2. tenant is or is not protected by the Rent Control Acts is a matter which the Court may take into consideration along with all the other circumstances of the

case which also include the financial position of the landlord as [*53] well as of the tenant. Another relevant circumstance

is whether the tenant, adopting an uncompromising attitude, takes no real steps to try and find other accommodation.

The judge is directed to turn his mind on the balance of hardship and this means that he has to "add up the items of hardship proved in evidence on each side of the statutory profit and loss account or balance sheet (for either metaphor will serve) and then see on which party the greater hardship falls. The second is that the judge is called on to operate the process by putting a hardship value on the various items on each side. That involves making very human estimates of comparative values on which widely divergent views may be taken by any two human minds": per Scott, L.J. in Chandler v. Strevett (supra) at p. 165.

Applying the above principles to the facts in the case in hand, the tenant has failed to discharge the onus of proof cast upon him. I go even further and can safely rule that the evidence tends to establish that greater hardship shall result to the landlord if the ejectment order is not made. I have been led to this conclusion taking into consideration, amongst all other circumstances of the case, the uncompromising attitude adopted by the tenant who took no real steps to try and find other accommodation.

In their effort to help their tenant to secure other accommodation, the landlady and her husband informed the tenant of the existence of 6 different houses at Kakopetria offered to be let by their owners. I do not [*54] believe that the tenant ever made any effort to find any other accommodation for himself. He did not ever make any serious efforts to contact the owners of some of the houses suggested to him by his landlady, and negotiate with them directly. He excluded altogether those houses which were ground-floor houses because, as he said in his evidence, he considers all ground-floor houses unsuitable for his family due to his bad experience with his present house. He wanted to find a better house than the one occupied by him at present, before acceding to the landlady's demand. I consider the tenant's conduct in this respect totally unreasonable. If there is any need of limiting the meaning of the words "other accommodation" in sec. 16(1)(z) of the Law, they should be construed to mean "other similar accommodation" and not "other better accommodation".

On the evidence before me I find that at all material times there was other accommodation reasonably offered to the tenant of which he failed to avail himself due to his lack of proper interest and his unreasonable attitude and demands.

I should finally add in this respect that the respondent is not a displaced tenant and that the landlady did not acquire the subject-matter house after Law 36 of 1975 was enacted, for the purpose of acquiring possession thereof under the provisions of sec. 16(1)(z).

It remains to be considered whether this is a proper case to exercise my discretion under subsection 2 of section

16 of the Law by staying the execution of the [*55] order for possession to which the landlady is entitled. The tenant

should he afforded reasonable time to take this time real steps to find alternative accommodation. At the same time the Court should not lose sight of the urgent needs of the landlady. I consider that the legitimate interest of both parties are properly taken into account if execution of the possession order is stayed until the 31st December, 1978. Such stay should, of course, operate on condition that the current rent is paid regularly by the tenant as per the terms of the tenancy agreement - Exhibit 2.

In all the circumstances of this case I make no order as to costs.

In the result, the respondent-tenant is ordered to vacate the subject-matter house and deliver free possession thereof to the applicant-landlady not later than the 31st December, 1978.

No order as to costs.

Order of possession granted.

No order as to costs.