Their refusal gives a tenant the right to be heard even though the rent has not been paid
The behaviour of a landlord and a tenant is examined by the rent control court and if a landlord refuses to collect rent or contributes to its non-payment, the court will give the tenant the right to be heard.
The amendment to law 3(i)/2020 limits the right of the tenant to file a reply to an application for recovery of possession. The reply must be accompanied either by proof that the amount due as rent in arrear was deposited with the court or proof that it has been paid to the landlord or a representative of theirs or to a banking institution to their benefit.
However, the court in order to allow the tenant to file a reply, does not only consider the issue of his omission, but also the reasons behind it and whether the landlord actually refused to collect the rent. The examination of these facts ensures the principles of natural justice and the tenant’s right to a fair trial without deciding at this early stage whether the non-payment of the rent was justified as a result of the landlord’s behaviour.
A provision was added to the amendment that the decision of the secretary of the court to accept or reject the tenant’s reply is submitted within three working days. It is at this stage that the court decides whether it will accept the filing of the tenant’s reply, giving the reasoning of its decision. If the landlord does not agree with the decision to accept it and considers that the tenant is in abuse of the procedure since they do not pay the rent, they may file an application to have the reply struck out or set aside.
The above was examined by the president of the rent control court in a judgment issued November 16. An application was made by a landlord who claimed the recovery of possession of a house and rents in arrear. The tenant filed a reply and gave an explanation for the reasons for the non-payment of the rent. He attributed the omission to the landlord who would not sign a tenancy agreement as they had agreed. He said the landlord wanted to continue to collect the rent from the department of benefits, which used to pay it by bank transfer to his account as the tenant received minimum guarantee income. The filing of the reply was accepted as the court considered that the reply raised issues that were attributed to the landlord. Since the issue did not appear to be purely a matter of delay in the payment of the rent, the court considered that the reply should be allowed to be filed.
The landlord responded with an application to set aside the reply, however the tenant filed an objection. The court, taking into account the legal framework and the relevant facts, concluded that the acceptance of the reply was the result of evaluating all necessary facts and in particular the tenant’s defence, which was assessed as not being general. To the contrary, in a simple but clear way, the tenant connected his ommission to the behaviour of the landlord. It was neither fair nor reasonable to examine how the above affected the claim for the recovery of possession in the absence of the tenant. Ensuring the principles of natural justice and the tenant’s right to a fair trial exceeds the rights of the landlord under the new article 11(1)(a) of the rent control law, without of course at this stage deciding the final outcome on the tenant’s line of defence.
The court added that the whole issue did not appear to be only of one dimension as the landlord attempted to demonstrate nor was it limited to the examination of the provisions of article 11(1)(a). In legal terms, the issue in question may be related, on the one hand, to the determination of the actual terms of the tenancy and the effect on them of article 27 and, on the other hand, to the principles related to the finding of an estoppel or a waiver of right and consequently, the court dismissed the application to strike out the reply.
George Coucounis is a lawyer practicing in Larnaca and is the founder of George Coucounis LLC, Advocates & Legal Consultants, [email protected]