By George Coucounis
A competent town planning authority may impose certain terms on a town planning permit issued, such as the granting of part of the land to be developed in order to be registered as a public road and the owner in such a case is obliged to comply.
Otherwise, the competent authority may issue a certificate of unauthorised works if essential works carried out relating to the construction of a building or the division of land into plots are not in accordance with the town planning permit.
The certificate of unauthorised works is sent to the Land Registry and is considered as an existing demand of the competent authority for the registration of a prohibition regarding the voluntary transfer or encumbrance of the affected immovable property or a part of it.
This prohibition does not apply in the case of non-voluntary transfer or encumbrance or transfer by inheritance or donation to a spouse or child or to a relative up to third degree and it is transferred to the new owners.
Pursuant to the provisions of article 10C of the Streets and Buildings Law, voluntary transfer or encumbrance means the transfer or encumbrance of the affected immovable property with the free will of its owner, without him being forced due to legal measures taken against him or after a court order, specific performance, forced sale of a mortgage or other similar measures.
A certificate of unauthorised works may be issued in the case a building is constructed or a land is divided outside the boundaries of the land or when such works essentially affect the neighbouring properties or the safety of the public or other properties or public health.
When the administration, exercising its discretion, issues a certificate of unauthorised works, it acts in accordance with the above legal provisions, as well as under the provisions of article 65KZ of the Immovable Property Law, Cap.224 and it does not act in violation of the principles of good governance or in excess or abuse of its powers.
This conclusion was reached by the Administrative Court in the decision issued in case No 6001/2013 dated 23.2.2018 in which the applicant – owner filed a recourse against the decision of the Director of the Department of Lands and Surveys prohibiting the voluntary transfer and encumbrance of his property for the benefit of the competent authority.
The applicant is the owner of a property, who applied for the issue of the certificate of final approval, but he was informed that it could not have been issued, because the term of the town planning permit for granting part of his land to be registered as a public road and constructing a pavement hadn’t been fulfilled.
He informed the competent authority that he had no financial means to construct the road and the pavement, but he expressed his willingness to grant the strip of land required.
However, the competent authority, in the present case being the District Officer, issued a certificate of unauthorised works for failure to comply with the relevant term of the town planning permit and sent it to the Land Registry Officer, who proceeded with the registration of a prohibition for the voluntary transfer and encumbrance of the property for the benefit of the competent authority.
The applicant alleged that the Land Registry Officer acted in excess or abuse of his power or in violation of the principles of natural justice and good governance, considering that the decision taken limited his property right. The court, based on the facts of the case, found that the fees which the applicant was required to pay by mistake and he did so, did not constitute a certificate of final approval, since the act had not been issued, signed and dated in order to have its final form.
Therefore, there was no issue to revoke an administrative act, which was not created. Given the non-issuance of the certificate of final approval and the completion of essential building works, the provisions of article 10C of Cap.96 regarding the issue of a certificate of unauthorised works were activated. Upon its issue, it was sent to the Land Registry as a demand by the competent authority for the registration of a prohibition regarding the voluntary transfer and encumbrance of the owner’s property, thus activating the provisions of article 65KZ of Cap.224 in relation to updating the registration with an irregularity note and/or prohibition.
The court held that there wasn’t anything wrong with the procedure or the actions of the Administration, which implemented the relevant provisions of the Law and dismissed the recourse.
George Coucounis is a lawyer specialising in the Immovable Property Law, based in Larnaca, e-mail [email protected], www.coucounislaw.com, (tel. 24818288).