(1979)1979 June 8 [TRIANTAFYLLIDES, P., DEMETRIADES, SAVVIDES, JL] VEREGGAR1A P. PAPAKOKKINOU AND ANOTHER, Appellants, v. CHRISTODOULOS XENOPHONTOS, Respondent. (Civil Appeal No. 5944). Landlord and tenant—Statutory tenancy—Recovery of possession— Breach by the tenant of an obligation of the tenancy—Section 16(l)(
- b)of the Rent Control Law, 1975 (36/75)—Garage tenant repairing cars at a space other than that agreed upon by the parties—Not reasonable to make an order of eviction in the 5 circumstances of this case. Landlord and tenant—Statutory tenancy—Recovery of possession— Conduct constituting a nuisance to landlord and to persons in neighbouring premises—Section 16(l)(
- c)of the Rent Control Law, 1975 (36/75)—Eventhough test of reasonableness wrongly intro- 10 duced by trial Judge, on the basis of the findings of fact made by him there does not appear to exist the necessary factual substratum on which he could havebasedanorder of evictionon the aboveground. Landlord and tenant—Statutory tenancy—Recovery of possession— Deterioration of premises due to the conduct of the tenant— Section \6[ϊ){ά) of the Rent Control Law, 1975 (36/75)—Test of reasonableness andfactor of hardship erroneously introduced by trial Judge—Retrial ordered only as regards claimfor eviction un'er the above provision. 7ι*ΐ appellants, as owners of a garage on the outskirts of Paph» -, which was in the possession of the respondent as a tenant, ought to evict him therefrom on thegrounds set outin paragra >hs (b),(c)and (d)of section 16(!)* of the Rent Control Law, 1**75 (36/75). Quirted at pp. 772-4 post. • 770 15 20 25 1 C.L.R. 5 10 Papakokkinou & Another v. Xenophontos Regarding thefirstground, which has been based on a breach by the respondent of an obligation of the tenancy in that he repaired cars at a space other than that agreed upon between the partiesthetrial Judge found* that the few instances inwhich cars were seen outside the garage in breach of the agreement could notjustify an eviction order; regarding the second ground of eviction to the effect that the tenant was behaving himself in such a manner so as to cause nuisance to the appellants and to persons in neighbouring places the trial Judge found** that there was no nuisance; and with regard to the third ground, namely the deterioration of the premises due to the conduct of the tenant,the trial Judge stated that beforegranting the eviction order he had to be satisfied on the reasonableness of such an order and had to take into account the interests of the parties. 15 Upon appealagainst the dismissal oftheclaimfor eviction: 20 Held,
(1)(with regard to thefirstground) that this Court isin agreement with the trial Judge as regards the findings of fact which he has made, and it shares his view that, in the circumstances of the present case, it would not be reasonable to make an order of eviction. 25 30 35
(2)(With regard to thesecondground) that the trial Judge has reached correct conclusions in relation to the essential facts relevant to this ground; that, even though he has erroneously approached this matter as, also, entailing a decision by him as to whether or not the particular circumstances were such as to render it reasonable for him to make an order of eviction on this ground, this misdirection on his part as regards the legal effect of the applicable to the matter statutory provision, namely of section 16(l)(c) of Law 36/75, cannot be treated as having materially affected the outcome of the proceedings before him, because, in any event, on the basis of thefindingsof fact, which he has made in connection with this aspect of the case, there does not appear to exist the necessary factual substratum on which hecould havebased an order of eviction on such ground; and that, therefore, in this respect, too, this appeal cannot succeed.
(3)(With regard to thethirdground)that the tiialJudge seems * See the relevant part of his judgment at pp. 774-5 post. '* See the relevant part of his judgment at pp. 775-6 post. ,771 Papakokkinou & Another v. Xenophontos
(1979)to have wrongly introduced, in an unwarranted by the relevant statutory provision manner, a test of reasonableness; that he went further and brought in, also, the factor of hardship to the tenant, which is, again, not envisaged by the said provision; that in view of the manner in which the trial Judge has, 5 apparently, approached the factual aspect of this part of the present case whilst labouring under a misdirection in law as regards theapplication of section 16(I)(d)of Law 36/75,itcannot be speculated what would have been eventually his decision if he had approached correctly in law this ground of eviction, 10 unfettered completely by considerations such as reasonableness or hardship; that, therefoie, the safer course, in the interests of justice, is to set aside this part of his judgment and to order a new trial before another Judge, as regards only the claim for eviction under section 16(l)(
- d)of Law 36/75. 15 Appealpartly allowed. Retrial ordered as regards claim for eviction under section 16(l)(
- d)of Law 36/75. Appeal. Appeal by the owners against the judgment of the District Court of Paphos (Demetriou, S.D.J.) dated the 31st March, 1979 (Rent Control Appl. No.35/78) whereby their claim for the eviction of the tenant from a garage of theirs, situate at Paphos, was dismissed. 20 25 L. N. Clerides, for appellant No. 1. Appellant No. 2 appeared in person. Chr. Georghiades, for the respondent. TRIANTAFYLLIDES P.gave the following judgment of the Court. The appellants are the owners of immovable property on the 30 outskirts of Paphos, namely of a garage, which is in the posses sion o f the respondent as a tenant. The i opellants have sought to evict therefrom the respondent on three >ut of the grounds which are set out in section 16 of the Rent Control Law, 1975 (Law 36/75). The relevant parts of such se iion read as follows: "16.-( ) Ουδεμία απόφαση και ουδέν διάταγμα εκδίδεται 6ιά τήυ άνάκτησιν της κατοχής οίασδήποτε κατοικίας καταστήματος, δια το όποιον ισχύει ό irapebv ΙνΙόμος, ή δια 772 35 1 C.L.R. PapakokkinouA Another v.Xenopbontos Triantafyllides P. τήν f τούτου §£ωσιν ενοικιαστού, πλην των ακολούθων περιπτώσεων: (α) 5 10 15 20 25 30 35 (β) eis "ΐτερίπτωσιν καθ' ήν οΙαδήποτε ύποχρέωσις της ενοικιάσεως πλήυ της πληρωμής ενοικίου (εΐτε δυνάμει :οϋ ενοικιαστήρίου συμβολαίου, εΐτε δυνάμει των δια τάξεων τοϋ παρόντος Νόμου), έφ*όσον ή ύποχρέωσις εΐναι σύμφωνος προς τάς διατάζειςτοϋ παρόντος Νόμου, ήθετήθη ή δέν έΐετελέσθη ΰπότοΰ ενοικιαστού καΐτό Δικαστήριον θεωρεί λογικήν τήν έκδοσιν τοιαύτης αποφάσεως ή τοιούτου διατάγματος· ή (γ) είςπερίπτωσιν καθ' ήνόενοικιαστής ήπάςάλλος κατέχων υπ* αυτόν τήν κατοικίαν ή κατάστημα ΟπήρΕεν ένοχος διαγωγής αποτελούσης όχληρίαν ή διαρκή ένόχλησιν διά πρόσωπα είς τό ίδιον f γειτνιάζοντα ακίνητα ή ευρέθη ένοχος ότι Ινήργησεν ώστε να χρησιμοποιηθούν ή επέτρεψε νάχρησιμοποιηθούν ή κατοικία ή τό κατά στημα διάπαρανόμους ή άνηθίκους σκοπούς- ή
(6)είς περίπτωσιν καθ' ήν ή κατάστασις τής κατοικίας ή τ ° ΰ καταστήματος έχει, κατά τήν γνώμην τούΔικα στηρίου, έπιδεινωθή λόγω καταστρεπτικών πράϋεων ή αμελείας ή παραλείψεως τού ενοικιαστού ή είς περί πτωσιν καθ' ήν ό ενοικιαστής αδίκως έπροΕέυησεν ή επέτρεψε τήν πρόκλησιν σημαντικής ζημίας είς τό άκίνητον ή ( "16.-
(1)No judgment or order for therecovery of posses sion of any dwelling house or business premises to which this Lawapplies, orfor the ejectment ofa tenant therefrom, shall be given or made except in thefollowing cases: (
- a)(
- b)where any obligation of the tenancy other than the payment ofrent (whether under the contract of tenancy or under the provisions of this Law), so far as the obligation is consistent with the provisions of this Law, has been broken or notperformed by thetenant and theCourt considers it reasonable that such judg ment or order be given or made; or (
- c)where the tenant or any other person occupying the 773 Triantafyllides P. Papnkokkinou & Another τ. Xenophontos
(1979)dwelling house or business premises under him has been guilty of conduct constituting a nuisance or continuous annoyance to persons in the same or neighbouring premises, or of causing or permittingthe use of the dwelling house or business premises for 5 illegal or immoral purposes; or (
- d)where the condition of the dwelling house or business premises has, in theopinion of theCourt,deteriorated owing to acts of waste by, or the neglect or default of thetenantorwherethetenanthaswrongfully caused or 10 suffered to be caused substantial damage to the premises; or (
- e)") The trial Court dismissed the claim of theappellants and, as a result, the present appeal has been lodged. 15 As regards thefirstground for eviction, which has been based on a breach by the respondent of an obligation of thetenancy, we are in agreement with the trial Judge as regards the findings of fact which he has made,and we share his view that, in the circumstances of the present case, it would not be reasonable 20 to make an order of eviction; in relation to this aspect of the case he has stated the following in his judgment, which may usefully be quoted:" Theotherleg of theground isthattherespondentrepaired cars at a space other than that agreed upon between the 25 parties. In the course of the hearing few instances were mentioned where cars in need of repairs were seen outside theshopoftherespondentinbreachof theagreement. The respondent in his testimony explained that on exceptional occasions a car may have to be left outside the shop for a 30 shorttimeuntilitisaccommodatedinthegaragefor repairs. Hiscounselargued inhisaddress thatsuchinstancescannot be treated as violations of the agreement to justify the ground for an eviction order. I have considered the arguments of both sides on this 35 ground in;the light of the relevant law and the evidence •adduced and have come to the conclusion that such instances cannotjustify an eviction order. As I was led to 774 1 C.L.R. ,5 10 PapakokkJnou&Anotherτ.Xenopbontos Triantafyllides P. u n d e n t κ die alley is an open space where access may usually be gained by anybody.. It is also in evidence that other garages and similar shops are in the area.. A number of cars may consequently be seen in the alley for various reasons such as for parking purposes and repairs. This fact, however unpleasant may be for the applicants, should not atfect my judgment to find that the respondent should be held liable or in any way answerable for acts of third persons over whom he has no authority or control. The result is, therefore, that this ground is also set aside as not having been proved sufficiently to justify an order for eviction". Regarding, next, the ground of eviction that the tenant is behaving himself in such a manner so as to cause nuisance to the 15 appellants and to persons in neighbouring premises the trial Judge said:- 20 25 30 35 40 '*A similar line of thought may be followed in dealing with The third ground which is, as 1 said, that the respondent is causing a nuisance to the applicants as well as to the adjoining tenants. As I have already indicated the alley is far from being a tidy place. The first question is whether such a condition may fall under the definition of nuisance. In this context nuisance should be construed in a wider sense and be according to 'the plain and sober and simple notions among the people' (see Megarrfs Rent Acts, at p..269). The learned author refers at p. 271 to the case of Mac Iver v. Struthers, 1924 S.L.T. 15 where it was held not to apply to permitting the premises to become dirty and malodorous if this adversely affects only the tenant himself and neither affects adjoining occupiers nor causes a deterio ration of the premises. In Woodfall on Landlord & Tenant (supra) at p. 1192 it is also explained that 'the nuisance or annoyance must be judged in relation to the adjoining occupier; the mere fact that there is a statutory nuisance under the Public Health Acts is not of itself sufficient under this clause though it may in a particular case constitute a breach of the implied covenant for tenant-like user.' Whether the nuisance or annoyance has actually been occa sioned is a question of fact for the trial Judge. Inthiscase there is evidence that the area outside theshop 775 Triantafyllides P. Papakokkinou & Aootber v. Xenophontos
(1979)is dirty, a condition which the Court might infer to affect adjoining occupiers but the evidence falls short in establishing any connection of this situation with the respondent. Considerable reliance was placed on the dirt caused by the respondent in the garage. At the same time allegations of 5 destruction ofthepremisesweremadetowhichI shall refer presently. EvenifIweretoinfer that suchacondition may constitute a nuisance I must view this situation in the light ofthe fact that the shopwasleased asa garage,with allthe work incidental thereto. The condition adversely affecting 10 the shop, must therefore besomething more than what can be expected from the work carried out, and must extend to a degree to constitute a nuisance as explained above. Inthiscasetheevidencedoesnotsupport suchpropositions. Asa result, Ifindthat this ground should also fail." 15 Weare ofthe opinionthat thetrial Judge has reached correct conslusions in relation to the essential facts relevant to this ground and we are, therefore, of the view that, even though he has erroneously approached this matter as, also, entailing a decisionbyhimastowhether ornottheparticularcircumstances 20 weresuchastorender itreasonable for him tomakean orderof eviction on this ground, this misdirection on his part as regards thelegaleffect oftheapplicabletothematter statutoryprovision, namely of section 16(l)(c) of Law 36/75, cannot be treated as having materially affected the outcomeofthe proceedingsbefore 25 him, because, in any event, on the basis of the findings of fact, which he has made in connection with this aspect of the case, there does not appear to exist the necessary factual substratum on which he could have based an order of eviction on such ground; therefore, in.this respect, too,wefindthat this appeal 30 cannot succeed. As regards the third ground of eviction, under paragraph (d) of subsection
(1)of section 16 of Law 36/75, namely the deterioration of the premises due to the conduct of the respondent asthetenant, thetrial Judgehasstatedthefollowing 35 in his judgment: " Apart from these factors I must bear in mind that to grant the order.I must be satisfied on the reasonableness of such an order. Furthermore I must take into account the interests of the parties. Useful guidance of this point 40 776 1 C.L.R. Papakokkinou &Anotherv.Xenophontos TriantafyUides P. may be derived from the explanation afforded in Woodfall on Landlord & Tenant, (supra) at p. 1184 at seq. where at p. 1185the learned author states the following :5 'In exercising that discretion the Court is to take into account every' circumstance that might affect the interests of the landlord or of the tenant of the premises, including financial hardship which may result from the Court's order.' Williamsonv. Pallant, [1924] 2 K.B. 173). 10 15 20 Whilst appreciating the problem of the applicants caused by the condition of the area as a whole for which, as I have already found, the respondent cannot be held responsible, I am of the view that to grant the order applied for would undoubtedly affect the interests of the respondent to a large degree. He is a man of rather poor means and has been carrying on his work theie for a number of years and has the advantage to use part of the alley for the repairs of the cars apart from the garage. If an order is granted the respondent will be deprived of the advantages he is enjoying now in the alley. Bearing in mind all the above and by applying the test of reasonableness as explained above, I find that the order for eviction should not be given on this ground." The trial Judge seems to have wrongly introduced, in an ,25 unwarranted by the relevant statutory provision manner, a test of reasonableness; and he went further and brought in, also, the factor of hardship to the tenant, which is, again, not envisaged by the said provision. Inview ofthe manner inwhich the trial Judge has, apparently, 30 approached the factual aspect of this part of the present case whilst labouring under a misdirection in law as regards the application of section 16(l)(d) of Law 36/75,wecannot speculate what would have been eventually his decision if he had approached correctly in law this ground of eviction, unfettered 35 completelyby considerations suchas reasonableness orhardship. We, therefore, think that the safer course, in the interests ofjustice, is to set aside this part of hisjudgment and to order a 777 TriantafyUides P. Papakokklnon & Another τ. Xenophontos
(1979)new trial before another Judge,as regards only theclaim for eviction under section 16(l)(
- d)of Law 36/75. As regards costs, we have decided to set aside theorder for costs madeagainst theappellants at[the trial and to make no order as regards either thecosts of thetrial orof this appeal. 5 Appealpartly allowed. Retrial ordered as regards claim for eviction under section \6(\)(
- d)of Law 36/75. Order for costs as above. 10 778