‘There is a remedy available to the landlord when the tenant’s reply is accepted by the court without payment of the rent’
THE new provision added to the rent control law in case the landlord claims the recovery of possession of their property when the tenant does not pay the rent, gives the tenant the right to file a reply to the eviction application, provided they proves the rent has been paid. In this case, the registrar of the court accepts or rejects the filing of the tenant’s reply and their decision is submitted to the court within three working days.
The court’s decision is not subject to an appeal nor can it be the subject of an application for the issue of a certiorari order, even if the law has been misinterpreted by the court. The landlord can use the remedy provided by the civil procedure rules, either by O.27 R.2 or O.48 R.11 and apply to strike out the reply of the tenant due to non-compliance with article 11(1)(a)(ii) of rent control law 23/83.
The tenant’s reply must be accompanied either by a receipt issued by the accounting department of the court showing the amount stated in the application as rent in arrear has been deposited in court at the date of the filing of the reply, or by a receipt issued by the landlord or a representative of their, or by a receipt that the amount was deposited in a banking institution for the benefit of the landlord or their representative. The relevant provision was added to limit the abuse of process by tenants, who owe rent in arrear and deliberately do not pay, taking advantage of the delay in the hearing of the cases before court.
An issue was brought before the supreme court in an application for the issue of a certiorari order in relation to a decision of the rent control court under article 11(1)(a)(ii). In particular, the court accepted the filing of the tenant’s reply to the landlord’s application for eviction, without the reply being accompanied by proof of payment of the rent in arrear due. The landlord claimed that the court had wrongly accepted the filing of the reply, as it became clear that the tenant had paid only part and not the whole amount owed. In fact, in their reply, the tenant did not make any allegation for repayment of the arrears. The reply was accompanied only by proof of deposit in a banking institution of part of the amount due, contrary to the above article.
The supreme court, which heard the landlord’s application, rejected it in its decision dated April 26, stating that the landlord referred to the rental conditions, as well as the failure of the tenant to pay the due rents. They also noted that the contested decision of the court was not submitted, since there was no written text of it, but it came from the file where the reply was filed. The landlord pointed out to the court the fact that they had no right of appeal and that the only remedy they were offered was the filing of an application for a certiorari order which allows the exercise of control by a higher court to a lower court. The court, referring to case law, emphasised that a certiorari is mainly issued to secure that the lower court operates within the limits of its jurisdiction and in accordance with the fundamental rules of law. In relation to jurisdiction, the criterion is whether the order under review was within the jurisdiction of the court that issued it. The absence of jurisdiction must be evident from the minutes of the proceedings and in relation to the illegality, it must be obvious.
The court was not convinced that the lower court acted manifestly illegally. Even if the court misinterpreted the relevant article, this cannot activate the privileged power of the supreme court to grant the relevant leave to file an application for a certiorari order. It pointed out that the civil procedure rules, either through O.27 R.2 or O.48 R.11, are available to the landlord in order to apply to strike out the reply of the tenant or for any other remedy and dismissed the application.
George Coucounis is a lawyer in Larnaca and the founder of George Coucounis Llc, [email protected]