It regulates the private right to real estate and does not promote public purpose
The decision of the director of the land registry on a property owner’s application for the on-site determination of the area of a piece of land concerns the private right to property and does not promote a public purpose. As a result, the director’s decision cannot be the subject matter of a recourse to the administrative court. The review of such a decision falls within the ambit of private law and can only be challenged by an appeal filed in the district court pursuant to Article 80 of the Immovable Property Law, Cap.224.
In the event that a recourse is filed requesting the annulment of the director’s decision or the remedy of an omission in such a decision, a jurisdictional issue is expected to be raised. Further objection is likely to be raised on the basis that the decision does not constitute an executory administrative act which can be challenged by a recourse filed pursuant to Article 146 of the Constitution. Consequently, the matter will be examined by the court preliminarily and outright as a matter of public interest pertaining to the admissibility of the recourse.
In a recent case, a request was filed at the land registry to determine the extent of land on site and the interested parties were informed that their title deeds were not in accordance with the cadastral registries. An application was thereupon submitted to the director to register the plots in question and issue title deeds, since they were allegedly divided and the land registry’s division file was lost. The director said further examination meant the written consent of all persons entitled to the registration of the pieces of land in their names was needed, or alternatively a court order recording which persons were entitled.
No response was provided and the legality of the director’s decision was challenged through a recourse filed at the administrative court. During the hearing the Republic suggested that the recourse was inadmissible because the decision under challenge did not constitute an executory administrative act. The argument was that the application to the land registry was not examined, that the director was in anticipation of further information in order to examine it and that the administrative court did not have jurisdiction since the challenged decision pertained to the applicant’s private rights, not a matter falling within the realm of public administrative law.
A judgment of the administrative court dated July 5, refers to the above, and provides that the court had the obligation to examine the aforesaid jurisdictional matter despite being raised late in the process, hence calling the parties to make representations in this regard. Deciding in favour of the director, the court referred to the relevant case law and recorded that no recourse may be filed against an administrative act pursuant to Article 146 of the Constitution except if such act falls within the ambit of public administrative law. Decisions of the director related to rights in immovable property law are normally of private nature. The resolution of border disputes was held to amount to regulation of civil rights of the interested parties and hence the public is not directly interested in the issuance and the contents of such decisions. Likewise, the court held that it was not possible to review the decision of the director to adjourn the date specified for the foreclosure of an immovable property.
The court emphasised that in Hellenic v. Republic the Supreme Court pointed out that a citizen who complains of decisions of the land registry which are of private nature is not deprived of an effective remedy just because such decisions do not fall within the ambit of public administrative law. Article 80 of Cap.224 provides an affected citizen with the right to file an appeal at the district court, whose jurisdiction extends to the essence of the decision too. The information requested by the respondent regarded the determination of his rights in immovable property. The director’s decision pertains to the same subject matter and hence falls within the sphere of private law by nature. Consequently, the supreme court acting in its capacity as first instance administrative court had no jurisdiction to hear the recourse.
Relying on these principles, the administrative court dismissed the recourse and concluded that the case concerned the regulation of property rights under civil law and not a decision that fell within the sphere of public law.
George Coucounis is a lawyer practicing in Larnaca and founder of George Coucounis LLC, [email protected]