Court held a police officer's agreement to occupy a house was a licence, not a tenancy, barring Rent Control Law protection.

[*266] 1984 Dec.11

(DEMETRIOU, Ag.P.D.C.)

IN THE DISTRICT COURT OF NICOSIA

Attorney-General of the Republic,

Plaintiff,

v.

Leontics Christou,

Defendant.

(Action No. 7980/84).

Landlord and tenant - Tenancies and licences, distinction between - Test applicable - Exclusive occupation of property no longer conclusive evidence of a tenancy - Written agreement between the Republic and the defendant, a member at the time of the Police Force, whereby the defendant took possession of a dwelling house and agreed to pay in consideration thereof 3% of his basic salary per month

- Stipulation that the possession would be terminated if and when the defendant ceases to be a member of the Police Force - In the circumstances the agreement created a licence and not a tenancy - It follows that the defendant, who ceased to be a member of the Police Force, cannot take advantage of the provisions of the Rent Control Law 36/75, as amended - Evicti order made - Stay of execution for ‘six months.

Rent Control - The Rent Control Law 36/7-5 — .It does not protect licensees.

Gl. HadjiPetrou, for the plaintiff.

No other appearance.

JUDGMENT

The following judgment was delivered by:-.

DEMETRIOU, Ag.P.D.C.: The claim in the present [*267] action is for the recovery of possession of a dwelling house, which is the property of the Republic of Cyprus. The defendant took possession of the house by virtue of a written agreement dated 8.4.83 (exhibit 1) at a time when he was in the Police Force. It was expressly stipulated in the said contract that the possession would be terminated if and when the defendant ceases to be a member of the Police Force. According to the evidence of Andreas Christodoulides, who is entrusted with the maintenance of the, houses similar to the

house in question, the defendant was paying 3% of his basic salary, a sum which was considered nominal and amounted to £2.22 per month. He

based this assertion by explaining that the house in question which consists, of three bedrooms, kitchen, dining room etc. would fetch at least £40. - per month by way of rent, if offered in the open market.

According to the evidence the defendant was dismissed from the ranks, of the force after disciplinary measures were taken against him. The plaintiff’s argument is that as a result of this the defendant should forfeit his right to possess the house as a licensee under the contract.

In order to obtain judgment against the defendant the plaintiff must satisfy the Court that the defendant is not a person protected under the provisions of Law 36/75 as amended. Section 2 of the Law sets out the definition of tenancy and tenant. It reads as follows:-

"'ενοικιαστής'

σημαίνει τον ενοικιαστήν ακινήτου εν σχέσει προς το οποίον υφίσταται ενοικίασις[*268] και

περιλαμβάνει –

(α) θέσμιον ενοικιαστήν·

(β) οιονδήποτε

υπενοικιαστήν ή παν έτερον πρόσωπον αποκτών δικαίωμα κατοχής του ακινήτου από

τον αρχικόν ενοικιαστήν ή υπενοικιαστήν·

(γ) την χήραν

ενοικιαστού ήτις διέμενε μετ' αυτού κατά τον χρόνον του θανάτου του, ή οσάκις ο

ενοικιαστής δεν εγκαταλείπη χήραν ή ο ενοικιαστής είναι γυνή, τοιούτο μέλος της

οικογένειας του ενοικιαστού το οποίον διέμενε μετά του ενοικιαστού δια περίοδον

ουχί μικροτέραν των εξ μηνών αμέσως προ του θανάτου του ενοικιαστού·

"ενοίκιον"

περιλαμβάνει οιονδήποτε ποσόν πληρωμένον ως ενοίκιον ή μίσθωμα δια την

χρησιμοποίησιν επίπλων εις περιπτώσεις καθ' ας ακίνητον ενοικιάζεται και τα εν αυτώ

έπιπλα εκμισθώνονται υπό του ιδιοκτήτου εις τον ενοικιαστήν·

'θέσμιος

ενοικιαστής' σημαίνει ενοικιαστήν ακινήτου συμπληρωθέντος κι ενοικιασθέντος δια πρώτην

φοράν προ της 31ης Δεκεμβρίου 1974 και κειμένου εντός ελεγχομένης περιοχής κηρυχθείσης ως

τοιαύτης δυνάμει των διατάξεων του εδαφίου (1) του άρθρου 3".

The question therefore, which I have to answer is whether the agreement (exhibit 1) has created between the parties the relationship of landlord and tenant or merely that of licensor and licensee. If the relationship created is that of tenancy the defendant can taken shelter under the provisions of the Rent Control Law. If on the [*269] other hand the defendant is only a licensee he should be liable to an eviction order because the law does not cover his case. The principle whether an agreement creates a lease or a mere lecence is to be found in the Common Law and can be adopted in the present case. Reference on the point may first be made to Halsbury’s Laws of England 3rd Ed. Vol. 23 para. 1022. It reads as follows:-

“Principles for determining whether agreement creates lease or licence. In determing whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee the decisive consideration is the intention of the parties. The parties to an agreement cannot, however, turn a lease into a licence merely by stating that the document is to be deemed a licence or describing it as such; the relationship of the parties is determined by law on a consideration of all relevant provisions of the agreement; nor will the employment of words appropriate to a lease prevent the agreement from conferring a licence only if from the whole document it appears that it was intended merely to confer a licence. In the absence of any formal document the intention of the parties must be inferred from the circumstances and the conduct of the parties.”

The matter was taken up in a number of cases in England. In Shell-Mex v. Manchester Garages

(1971) 1 All E.R. 841 Lord Dening had this to say at p. 844. [*270]

“It seems to me that when the parties are making arrangements for a filling station they can agree either on a licence or on a tenancy. If they agree on a licence it is easy enough for their agreement to be put into writing in which case the licensee has no protection under the Landlord & Tenant Act 1954. But, if they agree on a tenancy, and so express it, he is protected. I realised that this means that the parties can, by agreeing on a

“licence, get out of the act.” 10

The point was also considered in Marchant v. Charten (C.A.) (1977) W.L.R. 1181, where Lord Dening M.R. said at p. 1184 the following: -

“On that evidence the final question is, was Mr. Charters a tenant or only a licensee? The law on this subject has been developed greatly in the last 25 years . I might almost say revolutionised. In 1952 I collected several of the cases in Errington v. Errington and Woods (1952)

1 K.B. 290 and since that time there have been many more. The difference is very important under the Rent Acts (including the Act of 1974) because a ‘tenant’ is given complete security of tenure, but a licensee is not. There are four or five cases, somewhat like the present, to which we have been

referred. The first is Appah v. Parncliffe Investments Ltd (1964) 1 W.L.R. 1064. A house had been split up into 17 different rooms, each with

its own Yale lock and key. The rooms were furnished. No meals were provided, but the rooms [*271] were cleaned daily, and beds made .Fresh linen was provided. A lady took one of the rooms, but owing to the negligence of the owners, someone was able to break into her room and steal her belongings. It was held that she was not a tenant but a licensee for reward: and so able to sue the owner for negligence.”

In examining the line of authorities regarding this point one finds that the original approach was that the right of

exclusive possession carried a tenancy with it (Lyns v. Snaith (1899) 1 Q.B. 486). The trend of the decisions shows that a completely different

approach is carried out. To-day the exclusive occupation of a property is no longer conclusive evidence of a tenancy. A contractual licence may confer on a licensee the right to occupy the land in the sense that only during the currency of the contract the licensee may keep out the licensor.

Considering the facts before me in the light of the above authorities I find that the right of the defe*dant to occupy the premises in question is derived from the contract entered into between himself and the Republic of Cyprus. In construing the contents of the contract I resolve that the parties agreed that the defendant should be a licensee for the sole purpose of himself and his family being adequately housed so long as the defendant was a police officer. The fact that he was paying a small percentage of his salary does not change my finding. Consequently the defendant cannot [*272] take advantage of the provisions of Law 36/75, as amended.

In view of all the above I find that the plaintiff is entitled to the order and the mesne profits as per claim. Considering, however, that the defendant is married with three infant children and all the circumstances of the case I would stay the eviction order for six months.

Judgment and order is therefore given for the plaintiff against the defendant as per claim. The order to be stayed for six months. Defendant to pay the costs of the action to be assessed by the Registrar, unless agreed between the parties.

Judgment and order as per claim with costs against defendant.