Alteration rights of an owner of a unit

The owner of another unit that is not affected, has no legitimate interest to file a recourse

By George Coucounis

The rights of owners of units in commonly owned buildings when it comes to alterations are regulated mainly by article 38D of the Immovable Property Law, Cap.224 and constitute property rights and as such fall under the scope of private law.

Article 38D provides an owner can carry out alterations, additions or repairs in their unit, provided that: (a) they do not in any way affect the rights of the owner of any other unit nor affect the enjoyment of it by its owner, (b) they do not affect the commonly owned property, its smooth functioning or its enjoyment, or (c) they do not affect the walls supporting the commonly owned building or any part of its frame or endanger the safety or alter the external appearance of the commonly owned building.

When an owner wants to make changes, the application for the issuance of the necessary town planning or building permit is submitted by the owner and it is not required to be signed by the management committee or the owners of the other units. In the case of internal alterations to a unit, the owner of another unit has no legitimate interest in filing a recourse against the decision of the appropriate authority, unless he demonstrates that his unit or the commonly owned building is being damaged.

In a judgment issued by the administrative court on December 21, the court examined the recourse filed by the owner of an apartment against the decision of a municipality to issue a town planning and a building permit to the owner of a neighbouring apartment. The permit was for alterations to a two-storey apartment and was granted based on the suggestion of the municipality’s technical department.

The municipality defended the legality of its decision, emphasising that the disputed application for the permit did not concern a change of use, but alterations inside the unit, while no adverse effect was shown to the neighbour or commonly owned building. Moreover, it stressed that the case falls under the provisions of the Regulatory Administrative Act 451/2014 when an application is filed directly for the issuance of a building permit and an attempt was made by the applicant to intervene in his neighbour’s right of enjoyment and disposal of his ownership.

With regard to the issue of the applicant’s lack of legitimate interest, the court said that case law has recognised that a town planning permit can be challenged if it affects the property of the applicant-neighbour. The applicant should clearly state in his recourse that the harm is existing or expected to happen and describe it. In this case, as stated by the court, it was not disputed that the applicant owned an apartment in the commonly owned building. However, co-ownership or proximity is not a sufficient reason to establish legitimate interest. The applicant did not provide any particulars of adverse effects that exceeded the level of theoretical damage. The allegations were neither probable nor indicative of any adverse effect.

The court consequently held that the applicant had no legitimate interest, stating that according to case law, administrative decisions determining the property rights of citizens fall within the scope of private law. If the decision indirectly affects the rights of the public, its character remains unchanged, since its primary purpose is to determine the rights of private law and therefore, the court dismissed the recourses as inadmissible.

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