(1989)l989Mav29 [SAW IDES J J I N T H E M A I T I R O I ARTICI 1 146 ΟΓ ΓΗΕCONSTITUTION \NDRFASKAR1\K1DLS ANDOTHERS Applicants \ ΓΗ1 MUMC1PUITYOI 1 \R\\CA Respondent (Cases\ΓΚ 67Vb7 674/6767VS7 676/S7) !mmo\ablc property — Co-ownership — The Immoxablc Property (Tenure RcgistiaiionMid \dilution}Law Cap 224 isamendedb\ laws VOOSO/s^ section 6— ihc sue on uhuh ablock ol buildings stands is proput\ owned held and enio\cd b\ all the owners ni the \<uions sloie\s oi purls ttiLfLOtin undi\ided shares — Therefore no building 5 panm empowering tnteiterence with iht site b\ e\ca\ation and/oi icmoxal ot soiltan be wanted unlesstherelevantapplicationis signed b\ all theu>-ownets— There is nothing ιο pic\cnt theto onncrsIrom regulating their nghts an-onathenhches as to ihc possession and enjoyment ol tomth owned ptojx:ri\ b\ ageneial agicement whichis 10 part andparcel ol theirrightplownetship— Inihecnciimsiances olthis uisc and in accnidancc with the pm/ict construction ol such general agreement in loice the icspondents couldnot issue ihc building permit empowering e\ca\anonot thesoil unless (he ipplicanonhadbeen signed bv alltheco owneis 15 The applicants arcowners ot Hatsonablockof Natsknown as Ho MviiTOi/ut Π ι π α ί χ η ο ι ν ο ι · eieacd on plot 979 at Lainaca at number 44 Gn\as Digenis A\cnue Theinterested partν is theowner ol a shop on the giound Moorof the said block The interested partv 2 0 applied for a building peimit to carrv out certain alluations and additions to its shop Such alteiations wouldentail e\ca\ation ol the flooi otihcshoptoa depth of 120 cms andlheiemo\al ol thesoil iiom 602 3 C.L.R. Kvrwkides &Others \. Munic. of Larnaca such c\ca\ation The application had not been signed b\ all the co-owners As the application was hnallv granted some ol the owners ol the Hatstiled the present recourse The Court annulled thesub judice decision because (
- a)The site is owned held and enjoved in accoidance with the hereinabove section ol cap 224 b\ all the eo owntis and thcrcloic tiic application sliouid ha\c been signed b\ all the co-owncis and thcietore subject toanycontraiv provision in tiiegcncia! agreement among theco owners theapplication lor thebuilding permit should ha\ebeen signed b>all theco-owneis as itempowercd theinterested partv to intcilerc with thesite (
- b)Ihere is nothing in die I aw to prevent theco-owneu Irom regulating the tight intei se as icgards the common piopens held in undivided shaie'N However the proper construcuon ol this gcneiat agreement in loreein thepresent case shouldhave leadtotheconclusion thatthe mattci tails w ithin theexpression demoht'onot external or di\iding walls or loundalions as well as the expansion ot the building or the eonvcision ot \crandas into closed spaces , which is expresslv piohibued Iherelore a decision b\ majont\ was not sulficicnt to empowei the applicant to file the ipplication In am event the applicant didnot succeed ingetting theapproval ol therequired SWA maioutv ol the co-owners (,
- c)In anv event the Court itached the conclusions that in the encumstances the lespondents tailed tocam out a due inquirv $ub judice decision annulled Cosis against the respondent Recourses. Recourses against the decision of therespondent to grant to the interested pam a building permit tor additions and alterations to ashop belonging tothem Λ. Iacovides. tor the Applicants. 603 Kyriakidcs & Others v. Mimic,of Larnaca
(1989)G. Nicolaides. for the Respondent. Λ. PapncharciUimbous. for the Interested party. Cur. adv. vult. 5 SAVVIDES. J. read the following judgment. By the present four recourses which were heard together as presenting common questions of law and fact and as directed against the same act.the applicants challenge theact and/ordecision of the 10 Municipality of Larnaca to grant to Yiannakis Savvides Ltd., the interested party, a building permit for additions and alterations to a shop belonging to it on the ground floor of a block of Hats at Larnaca. which allegedly interfere with the property of the applicants. 15 The applicants pray for thefollowing relief: "A declaration of theCourt thattheact and/ordecision of the Municipality of Larnaca underNo.373/87for a building permit 20 and/or covering permit and/or a permit for internal additions and alterations to an existing building by which application No. 432/S6of Yiannakis Savvides & Co. Ltd., was approved is null mid void and of no legal effect". 25 The legal grounds on which these recourses are based, as set out in the applications, are the following:
(1)The sub judice decision of the Municipality of Larnaca violates Article 23.1.2.3 of the constitution in that it 30 interferes with the right of property and/or ownership and/or co-ownership of the applicants.
(2)The sub judice decision violates section 6 of The Immovable Property (Tenure. Registration and 35 Valuation) Law. Cap. 224, The Streets and Buildings Regulation Law. Cap. 96 as amended, and section 29
(1)(c)of TheCourts of Justice law. 14/60. as amended.
(3)The sub judice decision is not duly reasoned.
(4)The respondent took the sub judice decision in abuse 604 40 3 C.L.R. Kyriakides &Others v. Munic.of Larnaca Savvides, J. and/orexcess of powers.
(5)Thesubjudice decision was taken underamisconception of fact. 5 The applicants are owners of Hatson a block of flats known as "Πολυκατοικία Παπαδοπούλου", erected on Plot 979, Sheet/Plan XL/64 2 1and 64
- IIat Lamaca at No. 44 Grivas Digenis Avenue. 10 The respondent is the appropriate authority for the grant of building permits under The Streets and Buildings Regulation Law for the town of Larnaca. 15 20 25 30 35 The interested party, alimitedcompany carrying on business at Lamaca.istheowner of ashopontheground floor of thesaid block of flats. The interested party applied, by application No, 432/
- for a building permit to carry out certain alterations and additions to its shop. In fact and as it emanates from a letter of the interested party to the respondent dated 15th September 19S
- (annex "Γ* to the written address of counsel for applicants). such alterations hadalready started being carried out before the application was submitted. In the alterations mentioned and as appearing on the plans submitted (annex "13" to the written address of counsel for applicants) there was. amongst others, the excavation of the floor to a depth of 120 cms. and the removal of the soil from such excavation, with the eltect that the ground floor would come down to a level of minus 120 cms. compared to its previous level. When the interested party started carrying out the excavations, the applicants, together with a number of other owners of flats in the same block, reported the matter to the respondent by letter dated 18th September, 1986, objecting to the issue of a permit. 40 The fact that some of the owners were complaining and objecting to theissue of the permit appears also in the report of 605 Savvides, J. Kyriakides &Others v. Munic.of Larnaca
(1989)the Municipal Engineer dated9thSeptember, 19S6,(annex"Θ"' to thewritten address of counsel for applicants) addressed tothe Mayor on which the mayor indorsed the following written remarks to the Municipal Engineer: 5 'The matter is avery serious one inthelight of protests from 13 owners of flats in thesame block. The case should be discussed at the Technical Committee which you should inform of the results of your local 10 inspection together with Mr. K. Nicolaides and finally you should discuss thematterwith ourlegaladviser, sothathe will be in a position to take a decision". The opinion of the legal adviser of the respondent by which 15 he was confirming his previous opinion of 29th August, 19S6, appears in a letter dated 1st November. 1986. addressed by him tothe Mayor (Exhibit "IT'^to the_written address of counsel for the respondent) the contents of which read as follows: 20 i; I affirm my opinion dated 29/8/19S6 and I repeat in other words that if theapplication concernsthebuilding site or any other part of the building/block, which is commonly owned. then the application should be signed by all the co-owners. 25 Even in a case where minor works will be carried by one owner on his own tenementsuch as excavations of the floor (these are mentioned in the written report of the Technical Service inthecase of Savvides)theapplication may be signed only by the owner of the panicular tenement so long as the 30 rightsof the other co-owners are not affected. If however, the case is for the excavation of one or one and a half metres under the level of the ground floor, as I have been informed ever since Iexpressed my previous opinion, 35 and this concerns the building site itself and. even worse in case another engineer contents that the foundations of the block of flats are affected, asthe Municipal Engineer toldme, then definitely the application has to be signed by all thecoowners. 40 I hope-thatthis-will clear any doubt in your mind". 606 - - 3 C.L.R. Kyriakides &Others v. Munic.of Larnaca . Savvides, J. The following written observations were recorded by the Mayor on thesaid letter: 5 10 "The Municipal Council will examine this matter at its meeting of 7.11.S6 (it is one of the topics arising from the minutes of theCommitteeof Technical Services). On the basis of the above opinion of our legal adviser it appears that we cannot issue the building permit unless the application is sighed by all theco-owners". "Further"cLarificationTon th"e"lega!~aspect"c)f th'e'case'vvere'"" askedby therespondentfrom itslegal adviser towhichthelatter answered by letter dated 14th November. 1986 (Annex "Ξ" to 15 the written address of counsel for applicants) which reads as follows: _.._ .20 25 30 "As thesituationhascrystallized sincelong,thereis nodoubt that theapplicationshouldbe refused onceitis apparentthat the .relevant,works affect in fact-seriously-the-building-site which is co-owned and the application was not signed by all the co-owners or at least their majority if such a provision exists in their General Agreement. As amatterof fact theCommitteeofTechnical Services took the same view on thebasis of my original advice. I am of the opinion that our recent idea to reply to the interested parties and the applicant that the application is under consideration, will serve no purpose except only the purpose of avoiding adverse comments that we delay our replies unreasonably. 35 If you decide to reply, then you should simply mentionthat thematter is under consideration. 40 I believe that the time has come for you to take a final decision andcommunicatesametomeso that I shall prepare for you the wording of the replies to the parties concerned which must be insuch case also very simple". A fact which also came to the knowledge of therespondent 607 Savvides, J. Kyriakides &Others v.Munic.of Larnaca
(1989)authority was that a number of co-owners concerned had alreadybroughtcivilactionsagainsttheinterestedpartyalleging interference with their right of ownership. This appears in the letter of counsel for interested party to the respondent dated 29th December 1986, which embodies his legal opinion in 5 support of the application of the interested party for abuilding permit. Accordingtosuchopinion thealterations wereamatter concerning exclusivelytheowner oftheshopandtheywerenot of such a nature as to affect inany waythe wholeblock of flats or interfere withparts ofthepropertywhichwerejointly owned 10 or for the common enjoyment of all the owners of theflatsand were merely internal alterations which were carried out under the supervision of a civil engineer. Hefurther contented thatthesaidalterations werewithin the 15 provisions of the Immovable Property (Tenure Registration and Valuation) Law andin accordance withthe requirementsof theTechnical Services oftherespondent which infact approved the issueofthepermit. Inhissaidopinion hemadean extensive analysis of the law and the terms of the general contract 20 regulating the rights and obligations of the owners of flats and shops in the said block of flats and concluded that the permit shouldbeissuedonthebasisofthedecision alreadytaken bythe appropriate Committee of the respondent. 25 Ineednot prolongfurther thenarration offacts which appear in a lengthy correspondence, opinions by technical experts. technical studies,anddecisionsor suggestions ofthe Committee of the Technical Services of the respondent and I shall come straight to the final decision taken by the respondent which is 30 being challenged by the applicants. Such decision was taken on 28th May. 1987.and accordingto the relevant extract from the minutes of the respondent authority (copy of which appears as annex 1 to the written address of counsel for the respondent) reads as follows: 35 "APPLICATION BY YIANiNAKIS SAVVIDES & SONS LTD. NO. 432/86 FOR ALTERATIONS - REEXAMINATION. 40 The Municipal Council discusses the above-mentioned building application on the basis of the minutes of the 60S 3 C.L.R. 5 10 Kyriakides &Others v.Munic.of Larnaca Savvides, J. Committee of Technical Services and Garage (Min. No. 5) dated 17.9.86, which were approved by the Municipal Council at its meeting of 7.11.86 (Min, No.599) and having taken into consideration the relevant report of the Senior Technical Assistant dated 19.5.1987 and28.5.19S7.in which mention is made that the majority of owners of flats has consented to the issue of the permit applied for and once accordingtotheopinion ofthetechnical expertsthesafetyof the building has been re-inforced by the works carried out, unanimously approves the issue of a covering permit for alterations to the Block of flats of Mr. Yiannakis Savvides (Appl.No.432/86)." Reference ismadeintheabovedecisiontotheminutesofthe 15 Committee of Technical Services dated 17.9.86 (copy of which appears as Exhibit 5) which was one of the matters taken into consideration inreachingthesubjudicedecision.Before making any comments on such decision I find it necessary to make reference to itscontents. It reads as follows: 20 "DECISION OF THE COMMITTEE OF TECHNICAL SERVICES AND GARAGE DATE 17.9.86 MIN.NO.5. 25 30 1. Application by Yiannakis Savvides and Sons Ltd., No. 432/86,for alterations (reconsideration). The Committee re-examines the subject-matter of the application for alterations No. 432/86 in the light of the opinion expressed by the legal adviser Mr. George Nicolaides,inconnection with thequestion whicharose asto whether Mr. Yiannakis Savvides has the right to sign the application submittedalone,orwhetherithastobeco-signed by all the co-owners of the block of flats and unanimously decidesto suggest to the Municipal Council the following: 35 40 1. To accept application 432/S6 only in so far as it concerns the excavation of the floor of the shop andthe construction ofamezzanine,becauseinsuchcasetheapplication doesnot have to be signed by the other co-owners, on condition that theapplicant willrepairany damagewhichmay result due to such works, to adjoining owners of the block and will demolish theillegallyerectedhutandrailingintheyardofthe 609 Savvides. J._ _Kyriakidcs_& Others v. Munic. of.Larnaca... .
(1989). block.
- To refuse the application for all remaining works because the application in such case has to be signed by all the co-owners." 5 IntheMinutesof the meetingof therespondentreference to which is madeinthesubjudice decision (Annex Ν tothewritten address of counsel for applicants) we read the following: 10 "Minutes No. 599/7.11.
- Having discussed in depththisbuilding case it isunanimously decided. 15 - (i)that in the minutes No,5 on this subject the following phrase is added at the end of the first paragraph and after deleting and substituting the full stop by a comma: 'bearing in mind that with the proposed works the security of the —building will-be rein-foreed-as-pointed-out-by the-VIunicipal -20 Engineer and the Chairman ol the Technical Services who have visited thebuilding' and (ii) that the case be referred back to the Committee of Technical Services after the legal aspect of the case is fully 25 clarified." Therefore, whereas by its decision No. 599/7.11.S6 the respondent dealt with the decision of the Committee oi Technical Services and decided to reler it back to the 30 Committee "after the legal aspect of the case is fully clarified", nevertheless in taking the sub judice decision it adopted such decision, without any mention whether the case was re examined by theCommittee oiTechnical Services after thelegal aspect of thecase was so clarified. 35 The other material which the respondent had before it according to the minutes of the meeting of 28.5.1987 were the relevant reports of the Senior Technical Assistant dated 19th May. 19S
- and28th May.
- Both these reports are before 40 ! me as annexes "A" and "M' of the address of counsel for applicants. 610 3 C.L.R. Kyriakides & Others v.Munic.of Larnaca Savvides, J. The contents of the first report refer to enquiries carried out by the Senior Technical Assistant concerning the requirement for the consent of the co-owners in view of the fact that in the General Agreement of the co-owners it is provided that for 5 certain decisions a majority of 51% of the votes of the coowners is required whereas for others the majority required is 80%andto thefact that Mr.Saveriades.advocate for Yiannakis Savvides & Sons Ltd., produced written consents of co-owners representing 60.5%of the votes and noes on as follows: 10 'lMr. M.Gavalasofthe Landsoffice explained to methat the provision in the General Agreement refers to alterations to spaces jointly owned or for the common use of the coowners but not to the grant of jointly owned space, to an 15 . individual..In such a case the Lands' office demands the signature of alltheco-owners. _ 20 25 Therefore for the issue of a building permit thematter rests on the question whether the ground which Mr. Savvides has excavated isjointly ownedorfor thecommon use.or private property belonging to him. If it isprivate property wecan issuethebuilding permit with the signature of Mr. Sawides only. If it isjointly.owned property,then the application has to be signed by all the owners. _ There isno precedent inthiscaseandtheopinions of lawyers are conflicting. 30 The Lands' office (Mr. Gavalas) mentioned also to me that " -"he does not recollect any similar-"previous case but in his " opinion the natural surface of the building site should be considered as jointlv-owned. 35 • -- —-- • • - - Mr. Saveriadessupports theviewthat once thecasedoesnot concern space which was being used byany other co-owner „ . — a n d once no-one has-been deprived of-anything and-their rights-and ownership-have not-been diminished then such 40 space cannot be considered asjointly-owned property". '-'"-'T '•• .._ - The-second report readsasfollows: 611 -- Savvides, J. Kyriakides &Others v. Munic.of Larnaca
(1989)"In continuation of my letter dated 19.5.87 and after a visit of Mr. Savvides and his advocate at the Mayor's office they produced three more written consents of co-owners which raise thevotes of those consentingto 1640. Also threeother co-owners representing 260 votes are absent abroad. 5 Therefore it appears from the above that out of 2280 votes 2020belong to owners whoare present inCyprus andoutof those Mr.Savvideshassecured 1640which represent S1.18% of those present or 71.93% of all the co-owners. 10 Please instruct." Nothing appears in thesaid two reports to theeffect that the Senior Technical Assistant was recommending the issue of the permit but on thecontrary from what emanates therefrom they 15 were reports about the enquiries made by him. which at least shouldhave placedtherespondentonitsguard toinquire further both on the legal and factual aspect of thecase. The voting power of each co-owner of the block of flats in 20 question appears in a list marked as Annex " Π "to the written address of counsel for applicants according to which there are 2280 votes distributed amongst the owners according to the type andsizeof theirtenements.Outof such votes 260 belonged to persons who at all material times to the present cases were 25 absent from Cyprus. Having gone at such length to narratethefacts, which for all intends and purposes of this recourse Ihave deemed necessary, I shall embark on themerits of thecase. 30 From thearguments advanced by counsel for theapplicants. the respondent authority andthe interested party the following issues pose for consideration: 35 (I) Whether the building site on which theblock of flats stands belongs jointly to all the owners of flats and whether the ground under the surface of the ground floor shop of the interested party was in the circumstances his private property on which he could carry out the excavations in 40 question and remove thesoil. 612 3 C.L.R. Kjriakides &Others v,Munic.of Larnaca Savvides, J.
(2)Whether under the law a permit such as the one issued by theRespondent couldbelegally issuedontheapplication of the interested party alone or whether the consent of allthe co-owners wasnecessarv. 5
(3)Whetherunder the provisions ofthegeneral agreement the consent of the majority of the owners can defeat the provision of thelawand.ifso,whatisthemajority required for such purpose. 10
(4)Whether in the circumstances the respondent carried out a due inquiry in thelight of conflicting legal opinions andthe other material before it. 15
(5)Whetherthesubjudice decision duly reasoned. Ishall proceed to consider the first question. Therightsand liabilities of owners offlatsof ablock of flats 20 erected on a building site are regulated by the Immovable Property (Tenure, Registration and Valuation) Law, Cap.224, as amended by Laws 3/60 -S6/85,which under s.6 provides as follows: 25 "6.
(1)Whenabuildingconsistsofmorethan onestorey,each storey orpart ofstoreywhichcanproperly and conveniently be held and enjoyed as a separate and self-contained tenement, may be owned, held and enjoyed separately as private property. 30 35 40
(2)The site on which the building is standing, the foundations thereof, the main walls supporting the whole building, its roof, the main staircase leading to the various storeys,theelevator ifsuchexists,themain corridor thereof, and any other part of the ground or building which is of common use to the owners of the various storeys or parts thereof andanypart ofthegroundorbuildingwhichmightbe specified or is specified to be of such common use in the permit concerning the decision of the building which was issued by the appropriate authority on the basis of the provisionsoftheStreetsandBuildingsRegulation Laworthe Regulationsissuedbyvirtuethereof,shallbeowned,heldand 613 Savvides, J. Kyriakides & Others v.Munic.of Larnaca
(1989)enjoyed byalloftheminundividedshares.
(3)The owner of each storey or part of a storey may make any alterations, additions or repairs to his storey or partofastoreyprovidedthattheydonotprejudicethe rights 5 -. oftheownerofanyother,storeyorpartofastoreyandthey do not unduly interfere with the enjoyment thereof by the ownerofsuchotherstorey orpartofastorey.
(4)Subject to any agreement between themselves, the 10 owners of the several storeys or part of a storey shall maintain, repair, or restore any part owned, held and enjoyed bythem inundividedsharesasin subsection
(2)of thissection provided andthecost thereof shallbeborneby everysuchownerinproportion tothevalueofhisstoreyor 15 part of a storey as registered or recorded immediately before theneedfor incurringsuchcosthadarisen: Provided that, if any owner fails or neglects to comply with-the requirements of this subsection, any other owner 20 may do all such acts and incur such expense as may be reasonably necessary for the purpose andmay recover the amountforwhichtheownerindefaultmaybeliable,bycivil action. -· It isclearfrom the aboveprovisions that thesite onwhich thebuildingstandsisproperty"owned,heldandenjoyed"byall the ownersorthevariousstoreysorpartsthereof,inundivided shares. Therefore, any interference with the building site by 30 excavation andremovalofthesoilamountstointerferencewith the right of ownership of the other owners of parts of the building standing on such site. In the circumstances of the present case, the ground under the floor of the shop of the applicant was property jointly owned by all co-owners and 35 could not be excavated and the soil be removed without the · consent ofalltheowners.Oncesuchunauthorizedactamounts to trespass on the jointly owned building site,the respondent . Municipality had no power to issue a covering permit authorizingsuchillegaloperationwithoutthewrittenconsentof 40 allthe-co-owners.The legal consultant of therespondent very - rightly adviseditthat,inthecircumstances,theapplication fora 614 3 C.L.R. Kyriakides &Others v. Munic. of Larnaca Savvides, J. covering permit, once it had not been signed by all the coowners, should have been refused. The respondent, however, ignored such advice and elected to act on its own wrong interpretation andmisconception of the law. 5 Theabove also answers thesecondquestion before me. As to the third issue, as already explained, no interference with any part of the site which is jointly owned or with such 10 parts of the building which are either jointly owned or for the common use of all co-owners canbe madewithout thewritten consent of all co-owners and subject to the provisions of subsection
(3)of s.6.Thereisnothingtoprevent theco-owners from regulating their rights among themselves as to the 15 possession and enjoyment of jointly owned property by a general agreement which is part and parcel of their right of ownership. In the present case such a general agreement does existsigned by all theco-owners. 20~ 25 30 35 40 The following"provisions relevant"to the present "case are" embodied inthesaid agreement: 5) ΚΟΙΝΟΚΤΗΤΑ ΠΡΑΓΜΑΤΑ ΚΑΙ ΚΟΙΝΟΧΡΗΣΤΟΙ ΧΩΡΟΙ. Κοινόκτηταπράγματακαικοινόχρηστοι-/(όροιεντωάνωθι οικοδομικά)συγκροτήματι, εάν και εφ'όσον τοιούτος χώρος ήτοιαύτακοινόκτηταπράγματα υπάρχουνειςτα συνημμένα αρχιτεκτονικάσχέδια ή τους συναφείς τεχνι κούς όρουςείναιταεξής: Τοοικόπεδονεφ'ούολόκληροςη οικοδομήμετά τωνακα λύπτων χώρατντου περιτοιχίσματος,αι θεμελιώσεις, τα τοιχώματατων όψεων, παντόςείδους διακοσμήσειςτων όψεων,ηκεντρικήείσοδος,ηταράτσα άνωθεντουτελευ ταίουορόφου,τοκλιμακοστάσιον, οισωλήνεςδιοχετεύσε ωςτωνομβρίωνυδάτωνκαιτηςοικιακήςχρήσεως,οιση πτικοί βόθροικαιαπορροφητικοί λάκκοιμετάτηςαποχετεύσεως αυτών,οεκμπετόναρμέντουόλουοικοδομικού συγκροτήματος μετά των θεμελιώσεων και γενικώς άπα ντες,οιχώροιή εγκαταστάσειςαίτινεςδιάτουνόμου θεω615 Savvides, J. Kyriakides &Others v. Munic.of Larnaca
(1989)ρούνται κοινά και ενγένει εκείνα ων ηχρήσις ανήκει εις πλείονας του ενός διαμερίσματα, ήών η φύσις και θέσις επηρεάζηαμέσως ή εμμέσως το όλον συγκρότημα του οι κοδομήματος,ως καιοιχώροι σταθμεύσεως. 7.ΜΕΤΑΤΡΟΠΗ ΚΟΙΝΟΚΤΗΤΩΝ Η ΚΟΙΝΟΧΡΗΣΤΩΝ ΧΩΡΩΝ. Η εις τα ανωτέρω κοινόκτητα ή κοινόχρηστα μέρη ή εις 10 παν όπερέχειάμεσον ή έμμεσον σχέσινμετηνόληναρμόνίαν καιεμφάνισιντουως άνωοικοδομικούσυγκροτήμα τος ρυδειιία ιιετατροπή,αφαίρεσις ήπροσθήκη επιτρέπε ταιάνευπροηνουαένηςεγκρίσεωςυπότων συνιδιρκτητών κατά πλειοψηφίαν ογδοήκοντα τοις εκατόν (80%) τρυλά- 15 yiOTpyψήφων,βάσει ποσοστών ως εντω εποιιένωάρθοω 8 αναφέρεται. 20
- ΔΙΚΑΙΩΜΑΤΑ ΕΣΩΤΕΡΙΚΗΣ ΜΕΤΑΡΡΥΘΜΙΣΕΩΣ Ο ιδιοκτήτης εκάστου διαμερίσματος και/ήάλλουτμήμα τος τουοικοδομικούσυγκροτήματος έχειπάντατα ανήκο ντα εις τον κύριον δικαιώματα εφ'όσον ηάσκησιςαυτών δεν παραβλάπτητην χρήσιν των άλλων ιδιοκτητών ήδεν 25 μείή την ασφάλειαν αυτών ή του όλου οικοδομήμα τος Απαγορεύεται διαρρύθμισιςδιαμερίσματος συνεπαγόμενη διάρρηξιντοίχων εξωτερικών η διαχωριστικώνή θεμελιώ σεων ως επίσης απαγορεύεταικαιη επέκτασιςτηςοικοδρ- 30 μής ή μετατρρπή βεραντών εις κλειστούς χώρους ;.. 35 18.ΛΗΨΙΣΑΠΟΦΑΣΕΩΣ ΣΥΝΙΔΙΟΚΤΗΤΩΝ Αι αποφάσεις των συνιδιοκτητών του ως άνω οικοδομι κού συγκροτήματος λαμβάνονται, εκτός εάν άλλως πως προνοείται, κατά πλειοψηφίαν 51%των ψήφων των πα- 40 ρόντων και ψηφιζόντων ιδιοκτητών εις συνέλευσιν των συνιδιοκτητών δεόντωςσυγκληθείσαν,αιδετοιαύταιαπο616 3 C.L.R. Kyriakides &Others v. Munic.of Larnaca Savvides, J. φάσεις θα είναι δεσμευτικαίδιάτους τοιούτουςσυνιδιοκτήτας είτε παρευρεθώσιν εις τηντοιαύτην συνέλευσιν εί τεμη. A comparison of paragraph 7 with paragraph 18 clearly indicates that whereas for any decision of the co-owners on general mattersamajority of 51%of votes of those presentand voting at ageneral meeting of theco-owners is sufficient under 10 paragraph 18 any alteration to jointly owned property or property to the common use of all co-owners requires a clear majority of 80% of such owners and not a majority of those present andvoting as inparagraph
- 15 20 25 Furthermore,a reading of paragraph 7 in conjunction with paragraph 11 leads to the following construction.Paragraph 7 clearly speaks of "alterations to jointly owned spaces or spaces to the common use of all co-owners", on which any alterations may be carried out by decision of amajority of at least 80%of votes, without,however, therightof joint ownership orrightof common use of the co-owners on the parts so altered, being affected or diminishedin any way ortheco-owners be deprived of theirjoint ownership onsuch parts.This is madeclear by the express provisions of paragraph 11by which arightfor internal alterations is given totheowners of each individual flat but any alterations involving "demolition of external or dividing walls or foundations, as well as the expansion of the building or the conversion of verandahs into closed spaces", is expressly prohibited. 30 35 40 Theexcavation of thegroundunderthesurface of theground floor shop of the interested party by 1-1.50 metres clearly amounts to an expansion of the shop and the increase of its dimensions by the area excavated. Such expansion which deprives any of the owners of his joint ownership or the part ' excavated and added to the shop is clearly out of the scope of paragraph 7 under which alterations may be carried out by a majority decision of at least 80%. Assuming, however, that the agreement is construed to the effect that amajority vote asmentionedin paragraph 7entitled the interested party, after obtaining the necessary permit from 617 Savvides, J. Kyriakides & Others v.Munic.of Larnaca
(1989)the appropriate authonty to carry out the said excavations, in thepresent caseitisclearthatthewrittenconsent ofthenumber of owners secured by the interested party did not satisfy the minimum of 80% required under paragraph 7 of the general agreement. In the calculation made by the advocate of the 5 interested party he allegesthat there wasa majority of 80%on the basis of the votes of those present and excluding those absent, which isnot in accord withthe provisions of paragraph 7. In fact, on the figures supplied by him to the respondent, he had only secured the written consent of 71% only. The 10 respondent, by accepting the contention of counsel for the respondent in this respect, clearly acted under a misconception of fact based on the wrong interpretation and apprehension of the relevant terms of thegeneral agreement. 15 I shall now deal with the question as to whether a proper inquiry was carried out inthecircumstances of thecase. As already mentioned the respondent in arriving at its sub judice decision relied on the decision of the Committee of 20 Technical Services and the reports ol its Senior Technical Assistant. Ihavealready dealtwithsuchreports.Thedecisionof the Committee ofTechnical Serviceswhichhadbeen examined at a previous meeting of therespondent ledto a decision being taken by the respondent that a funher inquiry was necessary 25 after the legal aspect of the case was cleared and a reconsideration of the case by the Committee of Technical Services in the light of the clarification on the legal aspect. Furthermore, a perusal of the two reports of the Senior Technical Assistant clearlymakestheneedoffurther inquiry on 30 the legal aspect of the case necessary. The advice of the legal consultant of the respondent in the circumstances of the case was against the issue of the permit as in his opinion the excavations carried out by the interested party amounted to interference with thejoint ownership ofthe other co-owners of 35 thebuildingsite.Therewasalsothequestion ofthe construction oftherelevant provisions ofthegeneral agreementwhichhadto be considered in the light both of the reports of the Senior Technical Assistant of the respondent and the legal advice of respondents' legal consultant. 40 Bearing in mind all the above I have reached the conclusion 618 3 C.L.R. Kyriakides & Others v.Munic.of Larnaca Savvides, J. thattherespondent failed tocarryout adueinquirywhichinthe circumstances of thecasewasnecessary.The respondent failed tocarryout such inquiryasaresultofmisconception offact and law,to which hewasledby acceptingthe opinion expressed in 5 the letter of counsel for interested party both in respect of the • construction ofthegeneral agreement andtheinterpretation of thelaw relevant to thecaseignoring altogether the legal advice oftheir own legal consultant. 10 I have already given sufficient reasons which lead to the conclusion that the sub judice decision was taken in excess of power, under a misconception of fact andlaw andby failure to carry out a due inquiry.Therefore, Ifind it unnecessary to deal with any othergroundsraisedbycounsel for applicants. 15 In the result the sub judice decision is annulled with costs against the respondent and infavour of the applicants. 20_ •- • Subjudice decisionannulled with costs. 619