(1987)1987March 16 (A LOIZOU DEMETRIADES KOURRIS JJ] COSTASXENOFONTOS Appellan t-Respondent, ν KH PAPASIANLTD Respon den ts-Apphcan ts. (CivilAppeal No 7213). Rent Control- Businesspremises- Evictionof tenant from- Section Il(l){h)of theRentControlLaw23/83-*Abuseof nght»-Arequirementappltcableonly to the instance in sub-paragraph 0) of the section ~ Not applicable to the instancesin sub-paragraphs (
- n)and (
- in)thereof - Thenew requirementthat "the landlordcouldnot reasonablydowhatareinsub paragraphs0)(n)and(
- m)5 set out, without obtainingpossession of the premises" - Aim of legislatorin enactingsuchnew requirement-The requirementastothe-necessarypermit* -Satisfied, ifitexistson dateofheanng-Not necessarythatitshouldexiston thedatethe reservedjudgment isdelivered The appellant was ordered by the RentControl Courtto deliver free and 1 0 vacant possession of the business premises situated in Ledra Str, No 102104 in Nicosia, on the ground that they were reasonably required by the respondents for demolition and reconstruction of a new building (section 11
(1)(h)of theRentControl Law 23/83) The grounds of appeal are That the proposed demolition constitutes an 1 5 "abuse ofright",thatthetnalJudgemisdirectedhimself onthelawasherelied on the principle inKontouν Solomou
(1978)1 CLR 425,dealing with the interpretation of section 16
(1)(h) of theRentControlLaw 36/75, andthatthe validity of the relevant demolition and building permits expired after the conclusion of theheanng,butbefore delivery of thereserved judgment of the 2 0 tnalCourt Held,dismissing theappeal
(1)Theterm"abuse of nght"iscontainedonly in sub-paragraph (0 of section 11
(1)(
- h)in relation to the instance of "demolition", and not in sub-paragraphs (
- n)and (
- m)thereof in relation respectively to the instance of "demolibon and reconstruction of new premises" andtotheinstanceof"substantial andradicalalterations" Thevery fact that the legislator separated the three instances into separate sub paragraphs and introduced theelementof "abuse of nght"only inrespect of the first one, shows that this requirement is confined to cases where the premises are sought solely for thepurpose of demolition 154 25 30 1 C.L.R. 10 15 Xenophontos v. Papaslan
(2)Section 11
(1)(h)of I aw.23/83 addedthe requirement that inaddition to the other pre requisites the landlord could no! reasonable do υ-hatare in jub paragraphs (ι)
- fn)and (
- m)set out without obtaining possession ofthe premises" The aim of the legislator is to prevent the automatic granting of eviction orders where the other pre requisites are proved to exist This provision did not exist in section 16
(1)(h) of Law 36/75 but reference to Kontou case supra is not a misdirection as what was decided therein is still applicable to the first requirement of the section namely that the "premises are reasonably required by the landlord"for the purposes set out in its three sub paragraphs The tnalJudgedidnot refertoKontou case in respeclofthe said new requirement The tnal Judge posed the question whether the landlord could reasonably demolish and reconstruct the premises without obtaining possession of the premises and concluded rightly in the circumstances thatit isnotpossible toConstructa basement groundfloorand three stones on the plot under examination otwhich the subjectpremises are part without the tenant moving auav
(3)The requitement a>to t l v nece^an, peimit i<satisfied if along uith theother requirements existson thedatethecaseisheardandnoton thedate a reservedjudgment is delivered 20 Appealdismissed No order an to costs Casesreterrea iu Kontou ι Solomon (197S)1 C L R 425 Michaehdesν lacovides
(1979)1C L R 123 25 Yerassimoui Roussoumdou
(1974)1C L R 107 Whitiinghamv Daue* and Another [1962] 1All Ε R 195 Ah ν Shenili XX [Pan II] C L R 68 Appeal. Appeal by respondentagainst thejudgmentof the Rent Control 30 Court of Nicosiadated the 22nd Apnl 1986 {Appl No E208/84) whereby he was ordered to deliver free and vacant possession of the businesspremisesinLedraStreetNo 102 104, Nicosia on the ground that they were reasonably required by the applicants for demolition and reconstruction of a new building 155 Xenophontos v. Papaslan
(1987)Ph. Clerides,forthe appellant. C.Emilianides, forthe respondents. Curadv. vult. A.LOIZOUJ. read the following judgmentof the Court.Thisis an appeal from thejudgment of the Rent Control Court, Nicosia, 5 by which the appellant was ordered to deliver free and vacant possession of the business premises situated in Ledra Street No. 102-104, Nicosia, on the ground that they were reasonably required bytherespondentsfordemolition andthe reconstruction of a new building. The execution of the said Order given on the 10 22ndApril 1986wassuspended untilthe31stJanuary 1987.The appellant was further ordered to pay £65.- mesne profits until delivery of the vacant possession of the said premises and the respondents to pay by way of compensation to the appellant, eighteen months rent, i.e. £1,170. -upon delivery of the vacant 15 possession of the said premises. Finally in the exercise of the Court's discretion underthe RentControlRulesofCourtof1983, there wasmade no orderas tocosts. Thefactsofthecasearebrieflythese.Therespondentsacquired theownershipofthesubjectpremisesin1981.Onthe20thMarch, 20 1984, a four months written notice wasgiven tothe tenant under the provisions of section 11
(1)(h)of the RentControl Law, 1983 (LawNo.23of 1983)hereinafter tobereferredtoastheLaw. Theproposed demolition, ofthesubject premisesaswellasthe twootheradjacent shopsandanarchadeandanareaof morethan 25 double the area of theshopsattheback ofthepremises, isfor the purpose of reconstructing a multishop as it was described, consisting ofabasement,parking-place,ground, first,second and thirdfloors. The application was filed on the 10th August 1984, and onthe 30 20th March, 1984, the respondents produced to the Court the domolitionpermitissuedbytheMunicipalityofNicosiaunderNo. 237andabuildingpermitunderNo. 15271,aswellasareceiptfor thecollectionbytheMunicipalityof£1,360.-demolitionfees and feesforthebuildingpermit.Thewholeprojectwillcost£300,000.- 35 156 1C.L.R. Xenophontosv. Papaslan A.LolxouJ. which the respondents being a flourishing business are in a position tospend. In 1984 the digging, of the open space at the back, for the construction of the basement started and the work stopped after 5 spending £25,000 awaiting the judgment of the trial Court, regarding the premises occupied by the appellant and two other tenants. They further spent another£25,000.- by placing an order for thesupply of aglass-dome which willbe installed on thetopof thebuilding for lighting 10 The appellant whoi?alsooccupying ashop opposite, isatenant of thesaid premises since 19b5 when itwas built. Hehad been a tenant of the older shop that was then demolished and rebuilt in 1964 andsince 1979 hepays themonthlyrentof £65.-. An order for the recovery of possession was given in the 15 meantimeagainst thetwo othertenantswhilstthiscase proceeded for hearing.The learned President duly dealt inhisjudgment with theevidence andelaborated inparticularonmattersrelatingtothe plans,demolitionandbuilding permitsandtheintendeduseofthis multi-storeyed shopping centre. He then set down the five 20 prerequisites to which reference will be made later, which in his view are required to be sarisned under section 11
(1)\li) (ii)emu proceeded toexamine same. Section 11
(1)(h)of the Law reads as follows: 25 30 11";-'
(1)Ουδεμίααπόφασις καιουδένδιάταγμα εκδίδεταιδια- την ανάκτησιν της κατοχής οιασδήποτε κατοικίας ή καταστήματος, διατο οποίον ισχύει ο παρών Νόμος,ή δια την εκ τούτου έξωσιν θεσμίου ενοικιαστού, πλην των ακολούθωνπεριπτώσεων: (η) ειςπερίπτωσιν καθ' ηντοακίνητοαπαιτείταιλογικώςοπό τουιδιοκτήτου (ι)δια την κατεδάφισιν τούτουοσάκιςαύτη δενσυνιστά κατάχρησιν δικαιώματος, (ιι)διατην κατεδάφισιν και επανοικοδόμησιν νέουακινή του, ή 157 A.LolzoaJ . Xenophontos v. Papaslan
(1987)(in) δ ι ' ουσιαστικός και ριζικός αλλαγάς συνεπαγόμενος την ριζικήν και ολικήν μετατροπήν τ ο ύ τ ο υ δια σκο πούς αξιοποιήσεως τ ο υ , και τ ο Δικαστήριο είναι πεπεισμένον ότι ο ιδιοκτήτης εξησφάλισε δια τ α ανωτέρω οσάκις ήτο επάναγκες την αναγκαίαν προς τούτο άδειαν και ότι ο ιδιοκτήτης δεν δύναται λογικώςνα προβή ε ι ς τ α ε ν τ α ι ς υ π ο π α ρ α γ ρ ά φ ο ι ς (ι), (Μ), (ΜΙ) διαλαμβανόμενα άνευανακτήσεως τηςκατοχής τ ο υ ακινήτου και νοουμένου ότι τταρέσχεν ουχί βραχυτέραν των τεσσάρων μηνών έγγραφον προειδοποίησιν εις τον ενοικιαοτήν να εκκένωση τ ο ακίνητον' > In English "11.-
(1)No judgment or order for the recovery of possession of any dwelling-house or shop, towhich this Law 15 applies, or for the ejectment of a tenant therefrom, shall be given or made except inthefollowing cases:(
- h)Where the premises are reasonably required by the landlord(i)for demolition thereof whenever thisdoes notamountto 20 an abuse of right, (ii)for thedomolitionandreconstructionof new premises, or (iii)for substantial and radical alterationsentailing theirradical and total conversion for the purpose of their development, and the Court is satisfied that the landlord has, where 25 necessary, obtained for the aforesaid the necessary permit and thatthelandlord couldnotreasonably dowhat areinsub paragraphs (i)(ii)and(iii)set out,withoutobtaining possession of the premises and provided that he has given to thetenant not less than four months notice in writing to vacate the 30 premises." Thefirst ground ofappeal argued before usisthatthe proposed demolition of thesaid premises constitutesanabuse ofrightinthat it intended to serve another purpose than the bona fide development of the property in question or the demolition of 35 same because it is necessary as being dangerous and ready to 158 5 10 1 C-L.R. Xenophontos v. Papaslan A. LolzouJ. collapse. Learned counsel went deeply into the legal meaning of abuse of right and referred us to numerous authorities, both in relation toejectment ordersand torightssafeguarded byvarious constitutions. * 5 Thefirst question, however, fordetermination by usiswhether the term abuse of right which iscontained in subparagraph (i)of thesaidsectionand inrelation totheinstanceofdemolition alone, asprovided insubparagraph (i)and nottothe twoother instances under subparagraphs (
- ii)and (iii) thereof that is "the demolition 10 and reconstruction of new premises" on the one hand, or "for substantial and radical alterations ..., for the purpose of their development". In our view the very fact that the legislator separated the three instances into separate subparagraphs and introduced the 15 element of "abuse of right" only inrespect of the first one, shows that this requirement was confined only to the cases where premises are sought solely for the purpose of demolition under subparagraph (
- i)and not to all the instances in the said section. Thisground therefore fails. 20 Thesecond ground of appeal which wasargued in connection with the first, but yet itconstitutes, aswe understood ita separate one, isthat the learned trialJudge misdirected himself on the law as he relied on the principles of the case of Kontou v. Solomou
(1978)l-C.L-.R. 425, which-interpreted-section 16.
(1)(h)oLthe._ 25 Rent Control Law, 1975 (Law No. 36 of 1975) whereas our present section isdifferently worded. Itistruethat under theoldsection itwasnecessaryasitisinthe present one that the premises should be reasonably required by the landlord for the purposes set out therein, whereas in the 30 present section there has been added the requirement that in addition to the other prerequisites "the landlord could not reasonably do what are in subparagraphs (i),(ii)and (iii)set out, without obtaining possession ofthe premises". As this latter provision did not exist in the previous section, 159 A.LoizouJ. Xenophontos v. Papaslan
(1987)naturally ithas not been the subject of judicial interpretation, but inourviewitpresents no difficulty. The aim of the legislator isto prevent the automatic granting of orders for the recovery of possession where theotherprerequitesareproved toexist.Itcasts upon the Courts the duty to consider further whether the extent 5 ofthedemolition reconstruction orsubstantialalteration proposed isof such a nature thatsame could not reasonably be done by the landlord without obtaining possession ofthe premises. The reference therefore tothe case of Kontou (supra)could not amount to a misdirection as what was decided therein is still 10 applicable to the first requirement ofthesaidsection, namely that the "premises are reasonably required by the landlord" for the purposes set out in itsthree subparagraphs. The five prerequisites of the Lawwhich the learned trial Judge examined separately and at length, taking into consideration the 15 evidence adduced, the Lawand the authoritiesare the following:
(1)Isthe case inhand covered bythe Rent Control Law?
(2)Has the landlord given to the tenant a notice in writing to vacate thepremises,not lessthan four months?
(3)Isapermitforthedemolition andreconstruction necessary 20 and ifyes, has the landlord obtained such permit? ItwasinrespectofthisrequirementthatthelearnedtrialJudge referred totheKontou case(supra)and toanumberofothercases such as Michaelides v. Iacovides
(1979)1 C.L.R. 123 in which reference is made, also to Yerassimou v. Roussoudiou
(1974)1 25 C.L.R. 107,as wellastoa number of English cases. Thefifth question posed byhimwaswhetherthelandlord could reasonably demolish and reconstruct the premises without obtainingpossession ofthepremises.Itwasinrespectofthislatter provisionthathereferred tothecaseof Whittingham v.Daviesand 30 Another 11962] 1AllE.R. p.195toapassage forthe construction of a work on thesubject premisesundertheprovisionsof section 30
(1)(f)of the Landlord andTenantAct 1954, inwhichhe said: "....thelanguageofs.30(l)(f) isthatthelandlord 'could not reasonably do (the work) without obtaining possession. I 35 conceivethatmustmeancouldnotreasonablydoitasamatter 160 1 C.L.R. Xenophontos v. Papaslan A. LolzouJ. of right without obtaining possession.' The section cannot, I think,have contemplated thatitmight be welland good ifthe tenant chose to give unspecified facilities lasting for a considerable time." 5 10 It was then that learned trial Judge concluded that "... in the present case matters are still simpler for the applicant, but independently of the above certainly inthe circumstances itisnot possible toconstructabasement,groundfloor andthreestoryes on theplot underexamination ofwhich thesubject premises arepart, withoutthetenantmoving away.So Ifind thatthisprerequisite of the section exists. Since therefore all the prerequisites of the law are satisfied I have come tothe conclusion of granting an orderof ejectment and delivery of vacant possession of the subject premises." 15 We find that the learned trial Judge in no way misdirected himself of this aspect of the provision of the Law under consideration but on the contrary he rightly found that the demolitionand reconstruction of the premises as envisaged inthe architectural plans of the landlord and the demolition of the 20 building premises obtained by him could not have reasonably ΚΡΡΠ rarrieH out without obtaininq possession of the premises. This ground therefore also fails. The last ground of appeal isthatas itappears from theduration of the validity of the demolition and building permits produced, 25 _same have expired after the conclusion of the hearing but before the delivery of the reserved judgment of the Court. This requirement of the law thatthelandlord must have obtained the necessary permit isnot satisfied. In our view this requirement is satisfied if along with the other 30 requirements the permit exists on the date the case is heard and not on thedate a reserved judgment isdelivered. Support for this proposition canbe found inMurude MehmetAli v.Hassan Remzi Shenili, Volume XX, (Part II) p. 68. Needless to say that the expiration date of a permit cannot be conclusive against the 35 landlord as under Section 5 of the Streets and Buildings Regulation Law, Cap. 96,apermitisrenewable atany subsequent time if not conflicting with any regulations in force at the time of such renewal upon payment of the fee prescribed in the original 161 A.LoizouJ. Xenophontos v. Papaslan
(1987)permit Indeed in this case it wasrenewed aswe were told in the course of the heanng ifthat could haveany beanng, which within itshould and could not Thisground therefore fails Inthe result the appeal isdismissed with noorder asto costs Appeal dismissed. No orderasthe costs 162 5