The disposal of state land is regulated by the Immovable Property Law, and it can be done only after a decision of the Council of Ministers. The meaning of the word ‘disposal’ in the law’s Regulations includes the granting, renting, exchange or alienation of any immovable property of the Republic in any manner, including the granting of access through it and a license for its use. The act of the government when deciding to dispose of state land is considered as management of the private property of the State and falls under the ambit of the private and not the public law. There is no vital public importance in the disposal of state land, since its management is regulated by the above special legislation and it can be done mainly in the following instances: (a) disposal of small plots, (b) disposal or lease of land for public benefit, (c) disposal for agricultural purposes and for stock farming, (e) disposal for residence, tourist and industrial purposes, (f) exchange of state land with private property exceptionally for the purpose of aligning and adjusting the boundaries of one or more adjacent pieces of land or for the improvement of the roads, and (g) exchange of state land with private property or part of it. The special regulations describe in detail the circumstances under which a piece of land belonging to the state can be disposed.
The case of an owner of land adjoined to state land, who applied for its leasing for agricultural purposes and his application was dismissed because it was not covered by the provisions of Regulation 5 due to the fact that the land is situated in a village which is residentially developed with the construction of holiday houses and the applicant permanently resides abroad and he is not a professional farmer, was examined twice by the Supreme Court. His recourse at first instance was dismissed since the decision of the Council of Ministers did not aim to promote any public interest, but to manage the private property of the state. The Council of Ministers decision protected the economic interest of the state and as a result, the recourse was dismissed. The applicant was not satisfied and filed an appeal, which was examined by the Supreme Court that adopted the first instance judgment. It held that the court of first instance had correctly decided that the decision of the Council of Ministers constituted management of property belonging to the state and it was not an executory act within the ambit of the public law, but of the private law.
The Supreme Court further analysed when an act of the administration falls under the sphere of public law and when under private law, referring to case-law. The main criterion for the distinction between acts of public law and acts of private law is the nature of the act itself and its intended purpose. An act or a decision can be issued by an administrative body in the exercise of its executory or administrative function, however it cannot be reviewed judicially under Article 146 of the Constitution, because the main purpose of the act or the decision is not of public interest, but it defines citizens’ civil rights. The raising of issues which attract the interest of the public was not considered adequate for an act to be within the sphere of public law. The nature of the act remains unchanged, even if the decision affects incidental rights of the wider public, since the main purpose of the decision is to regulate rights under private law.”
George Coucounis is a lawyer specialising in the Immovable Property Law, based in Larnaca, Tel: 24 818288, [email protected], www.coucounislaw.com