(1987)1987 January 12 ΙΑ LOIZOU. DEMETR1ADES, PIKIS, JJ 1 SOTIRIS EMFIETZIS, Appellant - Respondent, v. EKATERINIPIPON1DOU, Respondent -Applicant. (CaseStatedNo.215). Rent control — The Rent ControlLaw 23/83 — Section 11
(1)(0— 'Reasonably required»— Meaning of. The respondent isarefugee earning£140 -permonth Herhusband earns £350. They have two infant children living with them. From the time the respondenthadtoleaveherhomebecause oftheTurkishinvasion until1981 she resided at a number of houses which she rented. From 1981 she moved to the block where the flat, thesubject-matter, is situated. The flat in which she resides and for which she pays £60.-per month isidenticaltothe subject matteranditis onthefloor above it. The respondent bought the subject flat, knowing that the same was occupied bv the appellant. The appellant refused to heed respondent's requestforanincreaseofrentfrom£40.-to£50permonth 5 10 On22.11.83 therespondentreceived aletterfromherlandlordasking her tovacate the flat inwhich she resided, because thelandlord wanted to move inthere. 15 However, no further actionwas takenby her landlord. Theappellantis,also,arefugee. Helivesinthesubject flatwithhiswife.He earns £525permonth. Hiswife does notwork, butshe owns 6,000shares of the Bank of Cyprus. As the appellant refused to vacate the subject flat the respondent instituted proceedings and obtained an eviction order on the groundthatthe flat was reasonably requiredby herandherfamily. Hencethe present appeal. 20 Held,allowing theappeal.A)PerDemetriades,J.,A.Loizou,J.concurring, that, having considered thatthe respondentliveswith herfamily inaflatthat she rentsandwhich issituatedabove theoneoccupiedby theappellantand 2 5 is of the same size as that occupied by the appellant; mat at the time she 242 1 C.L.R. 5 1Q |c 20 25 Emfletzls v. Plponldou bought itsh.?wellknew thattheflat was lettotheappellantandthathewas a protected tenant that the respondent asked the appellant to add £10 per month totherenthepays toherandthatthelandlordof the respondent's flat expressed, but did not pursue his demand for her vacating the flat, we find thattheflat occupiedby theappellantcannotbe said inthelight of theauthontiesontheissue thatitis reasonably required for occupationby the owner B) Per Pikis J
(1)The first hurdle the owner must overcome in order to make a case for recovery of possession is to establish that the premises are reasonably required for occupation by the owner «Requires» imports a subjective element, namely that the owner genuinely wants to recover possession with a view to occupation of the premises but the element of «reasonableness- changes the inquiry into the needs of the owner intoan objective onemakingitincumbentupontheowner toprove notonly thatthe premises are genuinely required for his or her needs but that the need is objectively justified as well The test is «A genuine present need something more thandesire although something lessthanabsolute necessity •
(2)Theimmediacy of theneedtheowner hasof thepremises is necessanly dependentontheadequacyofotheraccommodationforthesabsfaction ofher needsandthoseofherfamily Theelementof immediacyislacking whenever the owner or any of the persons for whom recovery can be sought is a statutory tenant,more so in a case like thiswhere the owner purchased the propertyfullwellknowingthatitwassubjecttorentcontrol
(3)The tnal Court approached the question of the reasonableness of the requirementfrom thewrong angle,namely thefinancial circumstancesofthe parties Considerations of comparable hardship only come intoplay if the ownerfirst establishes thatthepremisesarereasonably requiredas aforesaid Appeal allowed No orderas to costs Casesreferredto 3Q Styhamdesv Paschahdou
(1985)1C LR 49, Antontadesv PantehandAnother{l979) 1C LR 57, Yiannopouhsv Theodoulou[1979)lCL R 215, Kennea/yvDunne[1977]2AllER 16, Aitkenv Snaw
(1933)S CΤ (ShenffCourt)21,22, 35 Cummmg ν Danson[1942] 2All ΕR 653, Rhodes ν Comford[1947]2MlΕR 601, Shreeve ν Hallaw
(1950)W Ν 140, 243 Emfletzts v.PJponldou
(1987)Papageorghiou ν HadjtPieras
(1981)1C LR 560, 322, Duffieldv. Gnmshaw{1947)EG Woodhousev Gnggs
(1947)LJ N C C R 138 Case stated. Case stated by the Chairman of the Rent Control Court of *> Nicosia relative to his decision of the 27th February, 1985 in proceedings undersection 1l(l)(f) of theRentControlLaw, 1983 (Law No. 23/83) instituted by Ekaterini Piponidou against Soterios Emfietzis whereby an ejectment order was granted against the tenant. i U M.Cleopas, for the appellant. G. Papatheodorou, for the respondent Cur.adv.vult. A. LOIZOUJ.:Themainjudgment of theCourtwillbe delivered by HisHonourJudge Demetriades. 15 DEMETRIADES J.: After the Rent Control Court heard the application of the respondent in this appeal, by which she was praying for the ejectment of her tenant,the appellant, an order was granted for his ejectment from theflatheisoccupying, onthe ground that the flat in question was reasonably required for 20 occupation by the landlord and her family. Againstthatorder the tenantfiled this appeal. Thefacts, asfound bythetrialCourtare,inbrief,thefollowing: Therespondent,arefugee from Famagusta,bought theflat,the subject matterof thisappealinMay 1983 atthepriceof£14,000.-, 25 after contracting loans from the Governmentof the Republic and two Co-operative Credit Societies. The flat was transferred and registered inthe name of therespondent onthe 17th September, 1983. At the time she purchased the flat, it was rented to the appellantat£40.- per month. 30 The respondent is a secondary school teacher employed by a private school. She earns £140.- per month. She has no other income, nor is she the owner of any other immovable property. She got married in 1975 and her husband is a cloth/material merchant,earningapproximately £350.-permonth.Thehusband 3 5 244 1 C.L.R. Emfletzls v. Plponldou Demetriades J. isnottheregisteredownerofanyimmovableproperty.Theyhave twochildren,oneattendingthethirdclassofanelementaryschool and the other a nursery. From the time the respondent had to leave Famagusta forcibly and until 1981she resided ata number 5 of houses which she rented. At first she stayed with her brother, she then moved to Ayios Dhometios, then to the block offlats known asChanteclair. From 1981she moved totheblock where, theflat,thesubject matter, issituated.Theflatinwhichsheresides isidenticaltothesubject matterand itison thefloorabove it.She 10 P a ys forit£60.-per month rent. Because of her several movements, the respondent decided to buy her ownflatand she bought the subjectflatafter itsprevious ownerhasassured herthatthetenant, whoistheappellant, knew that theflatwasforsale.Assoon asshe concluded the agreement 15 for the purchase of the flat, she informed the appellant that she had bought it and wanted to move into it. To this the appellant responded negatively and told her. amongst other things,that he wasnot prepared tovacate itunless Famagusta wasreturned.On several occasionsshemadeattemptstopersuade theappellantto 20 vacatetheflatbutinvain.Althoughshesuggestedtothe appellant anumber ofotherflats,theappellantrefused toinspectthem.The respondent hasnotasyetbeen abletovisitand inspect the flat. Onthe22nd November, 1983,therespondent receivedaletter from the owner ofthe flat she isrenting, asking her tovacate itas 25 the owner wanted to move there. No further action wastaken by herlandlord, however, untilthisday. Asregardstheappellant, whoisalsoarefugee from Famagusta, thetrialCourt found thathe rented thesubjectflatinMay1976at £40.-permonth;thathelivesintheflatwithhiswife;thatwhenhe 30 was asked to vacate theflathe inspected a number offlatsinthe vicinityofthesubjectflatbutastherentoftheseflatswasbetween £65.- and £100.- per month and they had no central heating, he refused to vacate the flat. It further found that the appellant, in addition to the financial burden that he was going to suffer by 35 payinga higherrent, refused tovacate theflatfor the reason that hishabitswouldbeaffected adversely. The trial Court found that the net salary of the appellant was £552.- per month. Hiswife was not working butshe isthe owner of6,000sharesoftheBankofCyprus. 245 Demetriadea J. Emfletzls v. Plponldou
(1987)Thetrial Courtthen proceeded todealwith the law applicable inthiskind of casesfor ejectment and havingcorrectly found that the applicant -respondent inthisappeal -hastosatisfy the Court thattheflatwasreasonablyrequired byher.proceededtomakeits finding byapplying the lawtothe facts of the case 5 In its view, the trial Court held that considering all the circumstances of the case, as these appeared on the.day of the hearing, and, amongst others,thefact thatthetenant isa refugee, the financial condition of each side, the existence of similar premises for the landlord as well as for the tenant, the limited 10 interest of the tenant towant to move to anotherflat,the sizeof each family, the even slight danger that the landlord would be forced to move to a sixth residence after becoming a refugee because the ownersof theflatsherentsmay wanttomove there, thedifference intherentwhichthelandlordpaysfromtheonethat 15 she receives from the tenant, and the terms of the agreement between the Republic and herself asregardsthe loan contracted, and in the light of the provisions of the law, the authorities cited and therealfacts ofthecase,thelandlordreasonablyrequiredthe flatforpossession byherandherfamily. 20 Havingconsidered thattherespondent liveswithherfamilyina flat thatsherentsandwhichissituatedabovetheone occupiedby the appellant; that thisflat isof the same size asthat occupied by theappellant;thatatthetimesheboughtitshewellknewthatthe flat waslettotheappellantandthathewasaprotectedtenant;that 25 the respondent, who paysa higher rent for the flat inwhich she andherfamilylivethanthatpaidtoherbytheappellant,askedthe lattertoadd£10.-permonthtotherenthepaystoherandthatthe landlordoftherespondent'sflatexpressed,butdidnotpursue,his demand forhervacatingthe flat, wefind that theflatoccupiedby 30 the appellant cannot be said, inthe lightofthe authorities on the issue,thatitisreasonably required foroccupation bythe owner. Onthequestion ofhardship,theevidencedoesnotsuggestthat the respondent willsuffer more than the appellant ifno order for ejectment isgranted. In the result, we find that the judgment of the Rent Control Court on thisissuewasnotwarranted bythe evidence. Appeal allowedwithno orderastocosts. PIKISJ.:Thisisanappealbythetenantagainstadecisionofthe 246 35 1 C.L.R. Emfletzls v. Piponldou Ptkis J. Nicosia RentControlCourtwherebyhewasordered tovacatethe premises occupied as a residence following an application of the respondent for recovery of possession. Originally the matter was raised before us by way of case stated in accordance with the 5 provisions of s. 7of the Rent Control Law 23/
- Following the amendmentofs.7broughtaboutbyLaw79/86.thecase pending before usmustbereviewed bywayofappeal asprovided ins.5(l) pf the amending legislation. Consequently, the adjudicative powers of the Court are not confined toanswering the questions 10 raised,butextendtoeverymatterinrespectofwhichanordermay be appropriately made as provided insubsection 3 of s.25 of the Courts of Justice Law. In this case the matter is of academic interest forthe questionsstated raisedsuccinct questionsthatcan, without difficulty, be restated into grounds of appeal directed 15 againstthejudgment oftheCourtupon whichthepreampletothe questions raised ispremised. In fact, the restatement of material findings preceding the questionnaire fashioned to the observations made in Stylianides v.Paschalides*makes our task on appeal easier still in that we can. without more ado, trace the 20 findings of the court bearingof the questions raised. The questions stated for our opinion raise the following two grounds ofappeal recounted inorder of priority, namely: (a) Whether the factual findings of the Court support the legal conclusion that the premises were reasonably required bythe respondent (owner),and ifso 25 — (b)Whether inthe.circumstances of the case asrevealed in the factual findings of-the-Court, greater-hardship would __ . . ensue by making an order of recovery of possession rather than withholding it. 30 Recitation of the material facts as they emerge from the judgmentoftheCourtandstatedinthequestionnairesubmitted to theSupreme Courtwillmakepossibletheexamination ofthecase in its true context. The appellant, a lawyer, and his family were displacedfrom theirhomeinFamagusta inthewakeoftheTurkish 35 invasion in the summer of
- At first they found refuge in Limassol where they stayed until the earlymonthsof 1976.Then theymoved toNicosiawheretheyrentedthepremiseshere under consideration, a fairly spaciousflatfor the accommodation of the •
(1985)1CL.R. 49. 247 Plkis J. Emfletzls v. Piponldou
(1987)appellant and hiswife.Theirtwo adult children work abroad and are accommodated in the premises only on temporary trips to Cyprus for occasional visits to their country and parents. Until recently the appellant was the Chairman of the Military Court earning a substantial salary. However, his net earnings were considerably reduced on account of payment of instalments to meetdebtstheycontracted,apparentlyfortheneedsofthe family. 5 Respondent too is a refugee who had, like the appellant, to cope with the vicissitudes of displacement. She isa teacher in a private school while her husband owns a drapery shop at 10 Onasagoras Street, Nicosia. They have two minor children, one attendingthe Elementaryand the otheraNursery school.The net earningsoftheirfamily were,astheCourtfound, slightlylessthan thoseoftheappellant.Theyoccupiedandstilldoaflatidenticalin sizetothatoccupied bytheappellant,onthefloorabovetheflatof 15 the appellant and like the appellant they are statutory tenants having the protection ofthelaw.In May 1983she purchased the flat occupied bythe appellant and inSeptember ofthesameyear she became its registered owner. She was aware of the fact the appellantwasastatutorytenant.Thepremiseswerepurchasedfor 20 £14,000 -by loans raised from different quarters. Soon after she became the owner oftheproperty,sherequestedtheappellant to vacatethepremisesinordertomakepossibletheiroccupation by therespondent. Appellantrefused toheed herrequest, mainly on account of the fact that the lease of comparable premises would 25 entailthepayment ofrenttwiceormorethatpaidforthepremises oftherespondent, thatistosay,£40.-permonth.The respondent herself is paying £60.- per month for the flat she occupies. Appellant also refused a request of the respondent to pay £10.morepermonthbywayofrentinordertomitigatethedifference of 30 £20.- between the rent paid for the two flats. Nonetheless this proposal isindicativeoftheabsence ofenyrealpressureupon the respondenttovacatethepremisessheoccupies. Atthetrialtherespondentlaidstressonaletterwrittenonbehalf of the owner of theflatshe occupies wherein a claim ismade for 35 recovery of possession of the premises on the ground that the owner and hisfamily, who resided abroad, intended toreturn to Cyprusandoccupythepremisesforuseasaresidence.Seemingly the owner of the premises did no more to pursue hisclaim. Tlje notice (Exhibit2)addressed totherespondent didnotconvey, as 40 248 1C.L.R. 5 Emfletzls v. Plponldou PlklsJ. we construe it, an immediate request for the vacation of the premises; itwas moreinthenatureofadeclarationof futureintent on the part of the owner. In the preample to the questionnaire stated for the opinion of the Supreme Court,it is unequivocally statedthatrespondentoccupiesthepremisesasastatutorytenant; and has, we may add,on thataccount,"the full protection of the law. Itis rightly pointed out inthejudgment thatthe first hurdlethe owner must overcome in order to make a case for recovery of ΙΟ possession is to establish that the premises are reasonably required for occupation by the owner. The Supreme Court addressed itself on numerous occasions to the interpretationof identical provisions in the Rent Control Legislation repealed by Law 23/83 (see, inter alia, Antoniades v. Panteli and Another 15
(1979)1C.L.R.57; Yiannopoulos v.Theodoulou
(1979)1C.L.R. 215). They followed the approach of English Courts to the interpretation of correspondingprovisions of English statutes. We see noreason why we shoulddepartfrom thisapproachandnone hasbeen suggested. 20 In the case of Kennealy v. Dunne* attention is focused on the implicationsof the "requirement"thattheowner musthave ofthe premises in order to recover possession; it is explained that "requires" importsa subjective element,namely, that the owner genuinely wants torecover possession with a viewto occupation 25 of the premises. Then it is pointed out that the qualification of "reasonableness" changestheinquiry intotheneedsof theowner into an objective one making it incumbent upon the owner to prove notonly thatthepremises are genuinely required for hisor her needsbut thattheneedisobjectively justified aswell.Thetest 30 repeatedly adopted for ascertaining whether the premises are "reasonably required" by theowner isthatsuggested inAitken v. Shaw** «A genuine present need something more than desire althoughsomethinglessthanabsolutenecessity».Thecaselaw also establishes that the perspective from which the need must be 35 assessedisthatofamanoftheworld***,withtheCourtentrustedto contemplate what these reactions might be in the given circumstancesofthecase**** *11977)2MIE.R 16 •"
(1933)SLT (SheriffCourt)21, 22 ·'* Halsburys LawsofEngland, 3rdEd., Vol 23,p 184, Cummingv Damon [1942)2ΑΆΕR 653, CA; Rhodes v. Comford
(1974)2 AllE.R.601,C A. *'*'Shreevev.Hauaw
(1950)W.N 140(CA); Halsbuiy's (supra), ρ 81ί 249 Pilds J. Emfletzis v. Plponidou
(1987)Riverting attention on Cyprus Rent Control Legislation introduced in the aftermath of theTurkish invasion, we mustnot loose sight of its objects, namely, to cope with scarcity of accommodation createdas a result of theTurkish invasion orthe mischief against which it is directed, that is, the disturbance of 5 statutory protection on light grounds. The purpose of the Ren: Control legislation enacted in 1974 and the context in which the legislation should be interpretedand applied, were discussed by theSupremeCourtinPapageorghiouv.Hadjipieras*. The immediacy of the need the owner has of the premises is 10 necessarily dependentontheadequacy of otheraccommodation forthesatisfaction ofherneedsandthoseofherfamily. InMegarry on The Rent Acts**, itissuggested onthebasisof caselaw*** that the element of immediacy necessary to sustain a claim for recovery of possession is lacking whenever the owner or any of 15 thepersons for whom recovery canbe sought isastatutorytenant. Although a different conclusion may be reachedas totheneedif the owner is constrained by a moral obligation to vacate the premises****. Inthis case nosuggestion of a moralobligation on thepartoftheownertovacatethepremiseshasbeensuggestedor 20 established. We are,with respect, infull agreement tothe approach above suggested to the ascertainment of the element of immediacy necessary tojustify theCourttoorderrecovery of possession. Any other approach would weaken the protection given by law to a 25 statutory tenantandultimatelydefeat theobjects of thelaw.More so in a case like the present where the owner purchased the property full well knowing that it was subject to rent control. To sustain the claim of theowner inthiscase would be,inourview, equivalent to recognizing as a valid proposition the existence of 30 justification for recovery of possession whenever the owner independently of availability of other accommodation for satisfaction ofhisneedsacquiresrentcontrolledpremises. ThetrialCourtapproachedthecasefromawrongangle making establishment of the reasonableness of the requirement of the owner for the premises dependent on balancing the financial •
(1981)1C.L.R 560. " 10thEd.. 1Text.ρ 286 '** Dufneldv. Gnmshaw
(1947)£ G. 322 (CA). Regrettably we were unableto consultthe relevantLawReportasitisunavailableatthelibraryoftheSupremeCourt. ""Woodhouse v. Griggs
(1947)LJ.N.C.C.R 138(C.A.). Wewereunableto tracethereport ofthiscasetoo. 250 35 1 C.L.R. 5 Emfletzls v. Plponldou PlldsJ. ircumstances of the parties In so doing they overlooked the object of the law and the protection afforded by the law to the tenant Considerations of comparable hardship only come into playifthe ownerfirst establishesthat thepremisesare reasonably required for her needs Havingfailed todoso,itisunnecessary to go intothatquestion Therefore, 1would allowthe appeal andset asidetheorderforrecoveryofpossession,withnoorderastocosts COURT Intheresulttheappealisunanimouslyallowedwithno orderastocosts 10 Appeal allowed with no order asto costs 251