(1982)1982 December 14 [HADJIANASTASSIOU, LORIS, PIKIS, JJ.] ANDREAS SIZINOS, Appellant-Plaintiff, KYRILLIS MASSOURIS, Respondent-Defendant. (Civil Appeal No. 6224). landlord and tenant—Statutory tenancy—Recovery of possession— Through misrepresentation and concealment of facts—Principles on which an actionfor damages will be sustained—And principles on which damages are assessed—Section 19 of the Rent Control Law, 1975 (Law 35/75). The appellant was the tenant of a house belonging to the res pondent. When the owner sought recovery of possession, under the provisions of section 16
(1)(ζ) of the RentControl Law, 1975 (Law 36/75) on the ground that the premises were reasona bly required for occupation by his daughter, then in the United io Kingdom, but expected to return with her husband to Cyprus and occupy the premises, the tenant,acting on the strength of the representations made in the application of the owner, con sented to an order of ejectment, undertaking to vacate the pre mises by 31.5.79, a datecoincidingwith theexpected return of the 15 daughter of the owner to Cyprus. The daughter of the owner returned to Cyprus on June 2, 1979 and the premises were vacated on July 7,
- In the meantime, the daughter of the owner and her husband stayed at her parental home for ten days and then moved to Latnaca where they were accommodated at 20 the house of the step-father of her husband. The daughter was awaiting the reassignment of duties to her at a government department wheieto she served eailier, before leaving for the United Kingdom, apparently on leave without pay. Her husband was in search of employment. Soon after their move- 25 ment to Larnaca, he was offered employment by her father- 752 5 Ϊ CX.R. Sizioos v. Massouris in-law, whereupon they made plans to stay at Larnaca, renting a flat. In less than a month,they abandoned plans to stay at Nicosia and the Nicosia flat, intended for their residence, was let, at or soon after its vacation by the tenant, at a rent considerably higher than previously collected, £40.- compared to £
- Following this development, the present proceedings weie initiated for damages for fraud and/or damages under section 19* of Law 36/
- 5 Thetrial Judge dismissed theactionhaving held thattheclaim of the owner for recovery of possession was not fraught with misrepresentation or concealment of facts; but at the same time heassessed the damage of the tenantat £250.-in order to makepossiblefinal adjudication upon all issues in dispute inthe event of appeal. 10 15 Upon appeal by the tenant andcross-appeal by the owner who disputed thefinding of the Courtas to the damages: Held, that a misrepresentation of any kind,as wellasconceal ment of facts, whether made bona fide or otherwise will sustain an action, provided that it produces loss or damage as a result of ajudgment founded upon such misrepresentation or conceal ment; that since in this case the inevitable inference was that the need of the premises by the owner for use of his daughter was conditional on a future eventuality i.e. on his son-in-law securing employment in Nicosia; that since this important consideration was not disclosed to the Court at the time of presenting the application for recovery of possession; and thatsinceinordertorecover possession alandlord must establish a definite and immediate need of the premises had such consi deration been disclosed it can be assumed with certainty thatthe order of ejectment would have been withheld for, given the uncertainty as to the plans of the daughter and her husband, about the place of their settlement, there was neither a present noi immediate need for the premises; that, therefore, the 20 25 30 * Section 19 reads as follows: "
- If, after a landlord has obtained a judgment or order for posses sion or ejectment under this Part, it is subsequently made to appear to the Court that thejudgment or order was obtained by misrepresenta tion or theconcealment of material facts, the Court may order theland lord to pay to the former tenant such sum as appears to be sufficient as compensation for damage or loss sustained by the tenant as a result of the judgment or order". 753 Sizioosv.Massouris
(1982)recovery of possession was secured because of a misrepresentationbytheownerastotheneedhehad ofthepremises,innocent though it may have been, as well as a concealment of the true facts relevant to the need of the premises by his daughter; accordingly the appellant had established his case before the trial Court, and,thedecision ofthe Court tothecontrary cannot be sustained. 5
(2)That damage naturally arising in a claim under s.19, would be the difference in value between the rental of the premisesin theopen marketand therentalactuallypaid; that that 10 appears to this Court to be the principal lossthat may berecovered in an action under s.19; that since no claim was made for such difference none is,therefore, recoverable in the present proceedings; accordingly the respondent is only entitled to nominal damages which are fixed at £10. 15 Appeal allowed. Cases referred to: Moustafa v. Theocharous,18 C.L.R. Part 3, 183; Thorn v. Smith [1947] K.B. 307; Andreou v. Christodoulou
(1978)1 C.L.R. 192; Aitken v. Shaw [1933] S.L.T.
- 20 Appeal. Appeal by plaintiff against the judgment of the District Court of Nicosia (Artemides, S.DJ.) dated the 30th January, 1981 (Action No. 4066/79) whereby his claim for the recovery 25 of damages under section 19 of the Rent Control Law, 1975 (Law No. 36 of 1975) was dismissed. N. Clerides with C. Saveriades, for the appellant. Ph. Valiantis, for the respondent. HADJIANASTASSIOU J.: The judgment of the Court will be 30 delivered by Mr. Justice Pikis. PIKIS J.: This is an appeal from a judgment of the District Court of Nicosia, dismissing an action for the recovery of damages under s.19 of the Rent Control Law - 36/
- The claim originally made, also included a claim for damages for fraud but, as it transpires from the record, the case at the trial was pursued exclusively under s.19, conferring a right of action to a 754 35 1 C.L.R. Sizinos v. Massouris PUds J. tenant ejected in consequence of "misrepresentations" or"concealment of facts" made by the owner in proceedings leading to his eviction. The owner sought recovery of possession under the provisions of s.l6(l)(Q of Law 36/75, on the 5 ground that the premises were reasonably required for occupation byhisdaughter, then in the United Kingdom, but expected to return with her husband toCyprus and occupy thepremises. The tenant, acting on the strength of the representations made in the application of the owner, consented to an order of eject10 ment, undertaking to vacate the premises by 31.5.79, a date coincidingwiththeexpectedreturn ofthedaughter oftheowner to Cyprus. As a matter of fact, the daughter of the owner returned to Cyprus on 2.6.79 whereupon the owner demanded vacant possession of the premises still in the occupation of the 15 tenant. However, no steps were taken to enforce the order, as they were entitled to. The tenant pleaded for an extension so as to makepossible the completion of a flat he had purchased. Not long afterwards, just over a month, the premises were vacated, on7.7.
- In themeantime,thedaughter oftheowner 20 and her husband stayed at her parental home for ten days and then moved to Larnaca where they were accommodated at the house of the step-father of her husband. The daughter was awaiting the reassignment of duties to her at a government department whereto she served earlier, before leaving for the 25 United Kingdom, apparently on leave without pay. Her husband wasin search of employment. Soon after theirmovement to Larnaca, he was offered employment by her father-in-' law, whereupon they made plans to stay at Larnaca, renting a flat. In the result, in lessthan a month, they abandoned plans 30 tostayatNicosiaand,inconsequence,theNicosiaflat, intended for their residence, was let, at or soon after its vacation by the tenant, at a rent considerably higher than previously collected, £40.- compared to £22.-. Following this development, the present proceedings wereinitiated for damages for fraud and/or 35 damages under s.
- The tenant inflated his claim out of all proportion to any conceivable loss he might have suffered as a result of his ejectment, including a claim for £700.- interest, payable for the purchase of the apartment he acquired. Artemides, S.D.J., as he then was,wasfavourably impressed 40 by the testimony of the owner and found him to have acted in good faith throughout, in contrast to the tenant who left him 755 I'ikis J. Sizinos v. Massourls
(1982)with a poor impression not least because of the exaggeration of his claim. For example, he claimed £300.- removal expenses whereas he incurred none. Equally ill-founded was his claim for other expenses incurred or likely to be incurred because of the location of the tenant's new premises allegedly situate at a 5 greater distance from the place of his employment, compared to theflat hepreviously occupied, whereas the distancebetween the two, to the place of his work, wasapproximately the same. The fourth item of damage claimed by the tenant, viz. £300.compensation for the trouble suffered in having to move and 10 anxiety arising from the conduct of the owner, was hardly articulated at all before the trial Court. • The learned trial Judge found for the owner, defendant inthe proceedings before the trial Court and, dismissed the action. At thesametime,he assessed thedamageofthetenant,plaintiff 15 in the proceedings, at £250.- in order to make possible final adjudication upon all issues in dispute in the event of appeal. It is not explained in thejudgment how the learned trial Judge arrived al thefigure of£250.-. The tenant challenges in this appeal the finding of the trial 20 Court, that theclaim for recovery ofpossession wasnot fraught with misrepresentation or concealment of facts. By a crossappeal, the owner disputes the finding of the trial Court as to the damage to which the owner would be entitled. In his submission, no damage was proved. 25 Misrepresentation - Concealment of facts - unders.19 of the Rent Control Law: As the learned trial Judge correctly noted, innocent misrepresentation and concealment of facts suffice to establish a case under s.19. The meaning of the two expressions is not 30 qualified bythe section ofthelawitself,nor does the legislature useeither expression as a termofart. Consequently,theymust be interpreted in accordance with their popular meaning; therefore, misrepresentation ofany kind, as wellasconcealment of facts, whether made bona fide or otherwise, will sustain an 35 action, provided it produces the consequences laid down by the law, i.e. loss or damage as a result of ajudgment founded upon such misrepresentation or concealment. There is no authoritativepronouncement ontheinterpretation ofs.19butadecision 756 1 C.L.R, Sizinos v. Massouris Pikis J. of the Supreme Court, on the interpretation of the comparable provisions ofs.2
(2)oftheincreaseofRent (Restriction)Law, 1942 (see also section 21, Cap. 86), is of considerable assistance and lends force to the view that it matters not whether the mis5 representation or concealment is made bona fide or mala fide Ayshe Moustafa & Another v. Athena Theocharous, 18 C.L.R. Part III, 183. Further, this interpretation is fully consonant with the spirit of the law and the intention of the legislature to make security of tenure for the tenants, as effective as the law 10 intends it to be. A similar approach was adopted by English Courts regarding the interpretation of s.6
(6)of the Increaseof Rent and Mortgage interest (Restrictions) Act 1920, conferring a kindred right to that created by s.19. The subject is discussed by R. E. Megarry 15 in his work on the Rent Acts, 10th ed., p. 297 et seq. As the learned author notes, it matters not that ejectment was obtained as a result of a consent order so long as the consent is obtained or induced by the misrepresentations made or the withholding of material facts. 20 25 30 35 40 The "misrepresentation" or "concealment" must be objectively established, by reference to the representations made by the landlord in seeking recovery of possession. As Scott, L.J. observed in Thome v. Smith [1947] K.B. 307, 312, the landlord claiming possession must show "the utmost good faith." What the trial Court was required to decide, was whether the claim by the landlord for repossession of the flat rested on a misrepresentation or concealment of facts. To recover possession, a landlord must establish a definite and immediate need of the premises - Andreou v. Christodoulou
(1978)1 C.L.R. 192 "A genuine present need, something more than a desire, although something less than absolute necessity" - Aitken v. Shaw
(1933)S.L.T. (Sheriff Court, p.21). The pertinent question was whether the owner misrepresented the need or concealed facts relevant to such need that ought to have been disclosed, leading to the issue of the ejectment order. For it appears to be well established that an action under s.19 is doomed to failure where possession would be recovered if the true facts had been known. (See, Megarry, supra, p.298). The learned trial Judge was impressed by the veracity of the owner and found that he acted bona fide all along in claiming 757 Pikis J. Sizinos v. Massonris
(1982)recovery of possession. Hefound him to have misrepresented nothing. His daughter returned to Cyprus and would have assumed possession but for the failure of the tenant to vacate the premises on the day appointed. On the other hand, hedid not purport toevaluate somefacts that appear toussalient and, 5 tend to cast a different complexion on the representations made by the owner for the recovery of the flat. These are, the non occupation oftheproperty bythedaughter oftheowner or any member of his family, notwithstanding the fact it was made available little longer than a month after the date previously 10 appointed. Another important fact that was omitted from consideration, was"the letting of the property to third parties at the timewhen the premises were vacated. What one may infer from the conduct ofthe owner, hisdaughter and her husband is,that the 15 need of the daughter for the premises, was dependent on the employment opportunities of her husband. In other words, the need of the owner for thepremises for use by his daughter, was directly related to the place of employment of his son-inlaw. As it proved, finding employment at Larnaca, led to the 20 settling of the couple at Larnaca and not Nicosia, notwithstanding the fact that the daughter of the owner would have to travel daily to Nicosia for her work. We cannot accept that the short delay in making the flat available was the causative factor for the non possession of the premises by the couple in 25 question. What led to that decision, was the fact that her husband secured employment in a town other than Nicosia. The inevitable inference is that the need of the premises by the owner for use of his daughter was conditional on a future eventuality, i.e. on his son-in-law securing employment at 30 Nicosia. This important consideration was not disclosed to the Court at the time of presentingthe application for recovery of possession. Further, if disclosed, we can assume with certainty the order would be withheld for, giventhe uncertainty as to the plans of the daughter and her husband, about the 35 place of their settlement, there was neither a present nor immediate need for the premises. The result is that the recovery of possession was secured because of a misrepresentation by the owner as to theneed hehad ofthepremises,innocent though it may have been, as well as a concealment of the true facts re- 40 levant to the need of the premises by his daughter. In our 758 1 C.L.R. Sizinos v. Massourls Pikis J. judgment, the appellan had established his case before the trial Court and,thedecision oftheCourt tothecontrary cannot be sustained. ' Damages: The damage recoverable under s.19 must naturally 5 arise and be attributable to the ill-founded dispossession. We need not pronounce conclusively on the items of damage that may be recovered under s.19. For the owner in this case did not prove to have suffered any damage whatever. One of the items claimed,i.e.interest payablefor thepurchase of an apart10 ment, was obviously remote and, could not be recovered under s.19. He would have been entitled to be recompensed for removal expenses, had he incurred any. Also, he would have been entitled to additional transport expenses he might have to incur for travelling to work but, again, he proved none. Pos15 sibly, he could claim by way of general damages, damage for disturbance arising from interference with comfort as a result of noise or other objectionable conduct associated with the new premises but no claim was raised in this connection. * Annoyance,assuch,attheconduct oftheowner,isnot alegitimate 20 item of damage under s.19. Damage naturally arising in a claim under s.19, would be the difference in value between the rental ofthepremisesinthe openmarket and therental actually paid. That appears to us to be the principal loss that may be recovered in an action under s.19. But no claim wasmade for 25 suchdifference and noneis,therefore, recoverable in thepresent proceedings. In our judgment, the respondent is only entitled to nominal damages which we fix at £10.-. In the result, the appealisallowed,thejudgment ofthe District Court issetaside, as well as the order for costs. 30 There willbeno order as tocosts,either here or in the Court below. Appeal allowed withno order as to costs. 759