Court dismisses appeal where unregistered co-owner cannot exercise pre-emption right despite ownership passing by law.

[*190] 1984 Oct. 13

(ARTEMIS, S.D.J)

IN THE DISTRICT COURT OF LIMSSOL

Stella Georghiou Tiflou and Another,

Applicants,

and

Theomaria Estates Ltd.,

Respondents,

and

Director of Lands and Surves Department,

Interested Party.

(Appeal/Appl. No.99/83).

Immovable property held in undivided shares - Sale of such a share - The right of pre-emption by the other co-owners

- The Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224, section 25(1) - A person who is entitled to be registered as a co-owner in an undivided share is not entitled to exercise the aforesaid right, notwithstanding that he is an “owner” in the sense given to such term by section 2 of the aforesaid law - Section 25(5) of the same law makes it

abundantly clear that the right of pre-emption can be exercised only by a person who is, at the time of the declaration

of sale of the undivided share in question, a registered co-owner in an undivided share.

E. Michaelides for the Appellants/Applicants.

E. Theodoulou for the Respondent Company.

App/Appl. 1 present.

Other parties absent. [*191]

JUDGMENT

The judgment of the Court was delivered by:

ARTEMIS,S.D.J.: By their present Appeal/Application apply for (a) an order of the Court setting aside the decision of the Director of the Lands and Surveys dated

23.9.83 by which he decided to allow the Respondent Company to exercise an option for the purchase of a 3/6 share of the land registration No. 6460 in the village of Phinikaria and for (b) an order ordering the Director of Lands and Surveys to register the said land in the name of the Applicants.

The facts of this case form common ground and what is left to the Court to decide is a purely legal point connected with the interpretation of the relevant legal provisions. In short the facts are as follows:

The Respondent Company, having bought the said land, took all the necessary steps to have it registered in their name and although steps were completed by the 1st of July 1983, due to delay by the Land Registry Office, registration in their name was not effected by the 12th of July 1983, date of the transfer of the land in the name of the Applicants, which transfer was set aside by the

decision of the Director under consideration. The reasoning for such decision was in effect that as the Respondent Company had done all in their power and they were entitled to the land, bearing in mind s. 19 of Law 9 of 1965, which [*192] provides that on the date the declaration of sale is accepted the title in the land passes to the purchaser, it was only just and fair that transfer in the name of the. Respondent Company should be effected, notwithstanding that formally the ownership had not been recorded in the bocks of the Department. This line was adopted by learned counsel for the Respondent Company as well. On the other hand learned counsel for the Applicants argued that the law is quite clear on the point and for somebody to be entitled to exercise the option he must be a registered owner at the time of the sale. The relevant section of the law giving the option to a co-owner is s, 25 (1) of the Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224, which reads as follows:-

"25.(1) Τηρουμένων των διατάξεων του άρθρου 26, οσάκις κύριος εξ

αδιαιρέτου ιδανικής μερίδος επί οιασδήποτε ακινήτου ιδιοκτησίας προβή εις δήλωσιν ενώπιον

του Επαρχιακού Κτηματολογικού Γραφείου ότι συνεφώνησε να πωλήση ταύτην εις πρόσωπον

όπερ δεν είναι εγγεγραμμένον συγκύριος εν τη αυτή ιδιοκτησία, η μεταβίβασις της

τοιαύτης μερίδος δεν εγγράφεται εκτός εάν -

(α) εντός εξήκοντα ημερών από της ημερομηνίας της δηλώσεως πωλήσεως ο

πωλητής ικανοποιήση τον Διευθυντήν ότι οι έτεροι εγγεγραμμένοι συγκύριοι δεν

επιθυμώσι να αγοράσωσι την μερίδα αυτού εις την τιμήν εις ην πωλείται· ή

(β) ο σκοπούμενος αγοραστής δημοσιεύση την σκοπουμένην πώλησιν

ταύτης ή φέρη ταύτην εις γνώσιν του [*193] ετέρου κυρίου ως εν εδαφίω (2) προνοείται εντός εξήκοντα

ημερών από της ημερομηνίας της δημοσιεύσεως πωλήσεως και ουδείς εγγεγραμμένος

συγκύριος αποκτήση την μερίδα δυνάμει τούτου."

The meaning of the term “owner” is given in section 2 of the same Law:-

“‘owner’ means the person entitled to be registered as the owner of any immovable property whether he is so registered or not”.

The word “registered” is defined as follows in the same section.

‘registered’ with its grammatical variations and cognate expressions means recorded in the Land “Register kept under the provisions of this Law”.

Moreover, if there were any doubt as to that, s.25 (5) makes it abundantly clear that the co-owner must have been registered at the time of the declaration of sale. The said sub-section provides as follows:-

"(5) Δια τους σκοπούς του παρόντος άρθρου, 'εγγεγραμμένος

συγκύριος', 'έτερος κύριος' και πας έτερος συναφής όρος σημαίνει πρόσωπον το οποίον

ήτο εγγεγραμμένον συγκύριος κατά την ημερομηνίαν και ώραν κατά την οποίαν

εγένετο ή εν τω εδαφίω (1) αναφερομένη δήλωσις πωλήσεως. "

It is clear from the facts of this case that even though the Respondent Company was not registered at that time, [*194] they were actually entitled to be registered and the ownership had actually passed to them pursuant to s. 19. The. Law, however, on the point is quite clear. If the legislature wanted to give the benefit of the option to an owner entitled to be registered, there was no need to include the word “registered” as well. By doing so it has in effect made it a necessity to have the registration recorded in the Land Register.

In the present case such record had not been made with the effect that at the relevant date the Respondent Company was not a ”registered” co-owner. The relevant legal provisions being quite explicit, there is no room for the exercise of any discretion in interpreting the Law and the Court has to apply it as it is, even though I feel that the result is not fair for the Respondent Company. The fault, however, was that of the Department of Lands and Surveys in delaying to register the Respondent Company as owners and the latter may have to examine what remedy they may have against the Department.

In the circumstances, I feel bound to, and I grant, orders as per the Appeal/Application. Bearing in mind the novelty of the point, I make no order as to costs.

Order as per application with no orders as to costs.