Cyprus Mail
Property

Timely renewal of memo upon a property

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“It can be renewed if the conditions set by the law are cumulatively met”

The creditor who secures a court judgment against a debtor can register it with the land registry as a charge upon the immovable property which is registered and has a title deed in the name of the debtor. The registration of the judgment creates an encumbrance known as memo and makes the property a guarantee for the recovery of the judgment debt. At the same time, it makes the creditor secured in priority against other debts which do not burden the debtor’s property and which is subject to sale in order to satisfy the court judgment. The existence of an earlier charge or mortgage is not affected by the registration of the judgment, since the chronological order of priority also determines the rights of each creditor. In case the debt is paid and the judgment is satisfied, the creditor is obliged to withdraw the memo by giving a written notice to the land registry, otherwise he will be accountable to the debtor or any other creditor for damages they may suffer as a result of maintaining the memo. The creditor who registered the judgment can be sidelined if he does not enforce it, so he will lose his security in case he does not show any interest.

The immovable property of the debtor charged with a memo may be sold either after an application of the creditor to court and the issue of a sale order or after an application to the land registry one year after the registration of the memo. The registration remains valid for ten years and can be extended by court order, provided the conditions set by article 56(2) of Cap.6 are met. The court will not issue an order extending the registration of the memo unless: (a) the application is submitted at least one month before its expiration,  (b) the court is in a position, after hearing and examining the application, to issue the order before its expiration, (c) the land registry officer was notified of the application and the time of its hearing and (d) the court is satisfied that the judgment was not issued due to collusion or was not secured in order to sideline other creditors and also that the memo’s renewal will not adversely affect the debtor or any other judgment creditors.

The law is clear that the power of the court to extend the registration of a memo presupposes that it is in force at the time of the issuance of the order, otherwise no such order is issued, as was stated by the Limassol district court in a judgment dated February 11. The court added that the provision of R.52 of the civil procedure rules gives it the power to deal with the time regarding the deadlines set by the rules, not by the laws. The scope of the rules means, as it stated, that R.64 is limited and the court does not have the power to remedy the non-observance of the conditions. The application of the creditor was submitted on July 24, 2020 and the memo was to expire on September 24, 2020. The application was not submitted in the original proceedings where the judgment had been issued, but it was filed as a new originating application and for this reason the registrar set the hearing for December 7, 2020. The creditor did not care to have it fixed for hearing before the court prior to the expiration of the memo. Consequently, condition (b) of article 56(2) of the law was not met.

The court states in its findings that it is a condition for the legality of the renewal order to be issued before the expiration of the memo and this condition cannot be exceeded or abolished by any procedural rule. The deadline to submit the application for the renewal of the memo constitutes a legal condition, that is the application must be submitted before the court one month before the expiration of the memo at the latest, and the court does not have the power to extend it using R.57. In this case, the application was submitted in due time, but all the conditions of article 56(2) of Cap.6 were not met cumulatively; therefore, an order for the renewal of the memo could not be issued. The court concluded that the expiration of the memo on September 24, 2020 meant that the judgment of the court ceased to be registered upon the immovable property of the debtor as an encumbrance and to have any effect as such.

 

George Coucounis is a lawyer practicing in Larnaca and he is the founder of George Coucounis LLC, Advocates & Legal Consultants, [email protected]

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