MICHALAKIS SCHIZA AND ANOTHER ν. PARIS GAVRIAS AND OTHERS (V21) 1 CLR 177 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων (V21) 1 CLR 177 1956 October 18 [HALLINAN, C. J. and ZANNETIDES, J.] MICHALAKIS SCHIZA AND ANOTHER of Limassol, Appellants, v. PARIS GAVRIAS AND OTHERS of Limassol, Respondents. (Civil Appeal No. 4192). Landlord and tenant-Rent Control Law, 1954-section 2 "tenant"-widow residing with husband-but not on premises-notice to quit-receipt of rent after. The husband of one of the defendants was a tenant of a business premises, the property of the plaintiffs. This defendant had lived with her husband in other premises. The plaintiffs served a notice to terminate the contractual tenancy which accorded with the terms of the contract but which did not demand possession. After the tenant's death, the plaintiffs' clerk accepted one month's rent paid by the defendants as heirs of the deceased. The plaintiffs sued for possession. The trial Court found that the notice terminating the contractual tenancy was good and that the mere receipt of a month's rent by the clerk was not sufficient proof of intention to make a new contractual tenancy. The plaintiffs were entitled to possession as against the deceased's children who were not "tenants" within the meaning of section 2 of the Rent Control Law, 1954; but the deceased's widow was a tenant and was protected. Upon appeal, Held: Decision of trial Court affirmed except that an order for possession against the widow should go as she was not a "tenant" within the meaning of section 2 of the Rent Control Law,
- Appeal allowed and cross-appeal dismissed. Appeal by plaintiffs from the judgment of the District Court of Limassol (Action No. 1763/55). J. P. Potamitis for the appellants. A. S. Myrianthis for the respondents. The facts sufficiently appear in the judgment of this Court which was delivered by: HALLINAN, C. J.: In this case the father and husband of the defendants Stavros Gavrias became a tenant of the plaintiffs under a contract of lease dated the 30th October,
- This lease contained a clause, clause 9, which enabled the parties to terminate the lease by giving two months notice before the 31st December,
- If such notice was not given then there was to be a tenancy for another year. The plaintiffs in October, 1954, gave a notice to quit under this clause. On the assumption that the deceased Stavros Gavrias continued on as a statutory tenant they served him with a notice on the 20th of January, 1955, increasing the rent under the Rent Restriction Law, 1954, from £9 to £14.14.1½. On the 12th February, 1955, Gavrias died and letters of administration were granted to the 1st and 2nd defendants in March. On the 10th of March they paid to the clerk and agent of the plaintiffs the rent for March which was accepted and in respect of fell through and no further rent was accepted by the plaintiffs who then instituted this action seeking possession as against the widow of Gavrias and his two sons and a daughter and also against the two sons in their capacity as administrators. The learned trial judge held that the notice terminating the contractual tenancy was good and that Gavrias at the time of his death was a statutory tenant. He also held that the children of the deceased were not entitled to continue in possession as statutory tenants nor as administrators but he held that the 4th defendant, the widow, fell within the definition of tenant in section 2 of the Rent Control Law, 1954, and, therefore, he dismissed the claim against her. Against this decision the plaintiffs have appealed and the defendants have cross-appealed. The ground for the appeal is that the learned judge was wrong in holding as a matter of law that the widow was a tenant under the Law of
- We agree with his submission and consider that the decision of the learned trial judge on this point was incorrect. The material part of the definition of section 2 reads- "Tenant means the tenant of premises in respect of which the tenancy exists and includes the widow of a tenant which was residing with him at the time of his death." Apparently the trial judge thought that since the widow was residing with her deceased husband in a quite different premises in another part of the town that she should be deemed in occupation with her husband of the business premises, the subject of this appeal. In our view the word "residing" in the definition means residence in a dwelling house, not in a business premises and the fact that the wife resides with her husband in a premises other than the premises in dispute, does not entitle her after his death to go and occupy the premises which he occupies as a statutory tenant for business purposes. The cross-appeal has been brought on two grounds: First, that the notice to quit in October, 1954, was bad because it did not expressly demand that the tenant should give up the premises and we have been referred in this connection to Woodfall, 24th Edition,
- We accept the submission of counsel for the plaintiff that it is only necessary to demand possession where the notice to quit is intended to determine a periodic tenancy; but where, as in the present case, the contract of tenancy under clause 9 specifically provides the mode in which the tenancy is to be determined and the notice to quit complies with the provisions of that clause, then the tenancy is determined in law according to the contract. The second ground of the cross-appeal was that the plaintiff's clerk and agent having accepted the rent for the month of March, after the death of Gavrias, that thereby the plaintiffs had agreed to a new contractual tenancy with the administrators of the deceased. Now, the question of whether the acceptance of rent is sufficient evidence to constitute a new tenancy is a question of fact depending on the intention of the parties. The learned trial judge has this to say: "The plaintiffs gave an explanation as to why the rent for the month of March was kept so long. Their explanation is quite possible and I think the circumstances under which it was paid and received by the cashier did not create any contractual tenancy in favour of the defendants." Having considered the revelant parts of the evidence on this issue we are not prepared to upset the finding of the trial judge on a question of fact as to the intention of the parties and we consider that he was justified in holding that the receipt of rent for March by a clerk of the plaintiffs was not sufficient to constitute a new contractual tenancy. For these reasons we consider that the cross-appeal should be dismissed and the appeal allowed. Order: Order for possession against all the defendants. Judgment for meane profits to be computed and paid as follows: The amount of the monthly rent at £14.14.1½ from the 1st of April to the 31st of October to be paid forthwith; thereafter rent to be paid monthly in advance until day of possession. Order for possession postponed until the 1st of March,
- The plaintiffs to have their costs here and below. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο