Foreign statutory tenant ejected after new law removed protection; filing of suit deemed sufficient notice.

[*378] 1984 Jan. 10

(HADJITSANGARIS, P.D.C. AND ARTEMIS, S.D.J.)

IN THE DISTRICT COURT OF LIMASSOL

Ourania Stamatiou,

Plaintiff,

v.

Claude Azar,

Defendant.

(Action No. 3343/83).

Rent Control - Statutory tenant - Defendant, a foreigner subject became a statutory tenant of the premises in question, by operation of the Rent Control Law, 36/75 - The Rent Control Law, 23/83, Section 2 - Definition of “Tenant” and “Statutory Tenant” - Protection extended to an alien taken away as from the date of the operation of Law 23/33

- Defendant, however, did not become a trespasser, but either a licensee or a tenant at will - Reasonable notice necessary for the termination of such relationship - Filing of action sufficient to make plaintiff’s intentions plain and give such notice - Order of ejectment suspended until 1.3.84.

B.L. Vassiliades, for the Plaintiff.

V. Harakis, for the Defendant.

JUDGMENT

The judgment of the Court was delivered by:-

HADJITSANGARIS, P.D.C.:- The facts of this case are common ground and are shortly as follows:-

By an agreement dated 16.5.80 (Exh. 1) the plaintiff, a citizen of the Republic of Cyprus, let to the defendant, a foreign subject, the subject premises for the period of one year at the agreed rental of £1,080 per annum, payable half yearly. The said agreement was automatically renewed for a further year and then it expired. It is also [*379] common ground that, after the expiration of this agreement, the defendant “became a statutory tenant pursuant to the provisions of Law 36/75. On 3.2.83 by a letter (Exh. 2) the plaintiff claimed delivery of vacant possession by the 15th May, 1983 but again with no avail. In September, 1983 the present action was filed. It is clear, and we find it as a

fact, that as on 3.2.83 the defendant was a controlled tenant, the notice contained in the letter of 3.2.83 was of no

legal effect whatsoever.

It is the allegation of the plaintiff that, when Law 23/83 was enacted, the protection given to the defendant was taken away and he ceased to be a protected tenant and/or became a trespasser. On the other hand, it was argued by Counsel for the defendant that the new Law did not take away the vested right the defendant had in being a statutory tenant prior to the coming into operation of Law 23/83.

It is our view that the crucial point in this action falls to be decided upon the interpretation of the new Law.23/83

and, in particular, the definitions contained in s.2 of that Law of the terms “ενοικιαστής” and “θέσμιος ενοικιαστής”. The term “ενοικιαστής” is defined as follows:

“ 'ενοικαστής' σημαίνει παν

φυσικόν ή νομικόν προσωπον το οποίον συνήθως διαμένει ή έχει την έδραν αυτου εν Κύπρω και το οποίον είναι ενοικιαστής ακινήτου,

εν σχέσει προς το οποίον υφίσταται ενοικίασις και περιλαμβάνει -

(α)Θέσμιον ενοικιαστήν·

(β)………………….”.

[*380] Substituting for paragraph (a) and the term “θέσμιον ενοικιαστήν” the definition of “θέσμιος ενοικιαστής” and reading together the proviso contained at the end, the provisions of the law will appear as follows:-

"Ενοικιαστής '

σημαίνει παν φυσικόν ή νομικόν πρόσωπον το οποίον συνήθως διαμένει ή έχει την έδραν

αυτού εν Κύπρω και το οποίον είναι ενοικιαστής ακινήτου, εν σχεσει προς το

οποίον υφίσταται ενοικίασις και, περιλαμβάνει -

(α) ........ ενοικιαστής ακινήτου ο οποίος κατά την λήξιν ή τον

τερματισμόν της πρώτης ενοικιάσεως, εξακολουθεί να κατέχη το ακίνητον και

περιλαμβάνει πάντα θέσμιον ενοικιαστήν προ της ημερομηνίας ενάρξεως της ισχύος

του παρόντος Νόμου·

..............................................................................................

............................................................................................................................

αλλά δεν περιλαμβάνει

μη πολίτην της Δημοκρατίας ή νομικόν πρόσωπον ελεγχόμενον υπο αλλοδαπών·"

It is, therefore, plain - and we have no doubt in our minds - that the effect of these combined provisions of Law 23/83 is that the protection extended to an alien before the operation of this Law was taken away as from the date of operation of the new Law. Therefore this Court had jurisdiction in the matter.

The next question that needs to be answered is, what was the legal position of the defendant after the operation of such new Law. It is unthinkable to accept [*381] that the operation of the Law rendered the defendant a trespasser. Although we would not wish to make any definite finding as to his legal position, it seems to us that the defendant remained there at the sufferance of the plaintiff, perhaps by some kind of licence created by the operation of the law or may be as what is termed a “tenant at will”. For the termination of this licence and/or other relationship, usually a reasonable notice is necessary on behalf of the landlord. No such notice was given prior to the filing of the action but we consider the actual filing of the action as sufficient to make plain the intentions of the plaintiff and give reasonable notice to the other side that such sufferance and/or licence was being terminated. This view, we consider, is in accordance with all sense of justice, in the circumstances, bearing in mind the interests of both litigants, balancing the rights of each against those of the other.

We are, therefore, satisfied, that an order for delivery of vacant possession should be granted, but, in fairness to the defendant, this ejectment order should be suspended for a reasonable time.

In the result the defendant is hereby ordered to deliver vacant possession of the premises, subject matter of this action, to the plaintiff. This order is suspended until 1.3.84. The defendant is hereby ordered to pay mesne profits at the rate of £3 per day from 16.1.84 until delivery of vacant possession.[*382]

In the special circumstances of this case, we make no order as to costs.

Defendant ordered to deliver vacant possession of the subject matter premises. No order as to costs.