Cyprus Mail
Property

The principle of right and obligation

coucounis 2

He who benefits from a transaction must also bear the burden

 

A basic principle of law is that a person who chooses to accept a right that involves the fulfilment of an obligation, is not allowed to benefit but be released from the obligation. One is conditional on the other and the approbation of the right, prevents a person from claiming that he is not subject to the obligation.

This phenomenon can be observed in the case of a town planning or building permit, where the owner omits to fulfil a condition imposed on them when the permit is granted. If the owner accepts the permit and proceeds with the development, they  approbate it and have benefited. They are therefore prevented from challenging the condition afterwards. The conditions of the permit are integral and make it indivisible.

For example, an owner may apply to the competent authority to secure a building permit and give written consent to a condition imposed, such as granting part of the property to be registered as a public road. While securing the benefit, he might not proceed to obtain the certificate of final approval in order to update the title deed and register the road. Keeping the whole property on the title deed, however, does not legitimise the owner to file a lawsuit against the authority for trespass. Such a claim has no chance of success, as the owner is prevented by the principle of right and obligation.

A judgment issued by the District Court of Famagusta dated February 2 deals with the above principle. The predecessor of the owner of a property accepted the issuance of a building permit to construct a fence, which at the same time imposed a condition for granting part of the property as a public road. He constructed the fence and gave written consent granting the condition, but the new owner filed a lawsuit against the authority, which constructed the road, claiming that it committed illegal trespass. He also applied for an order for the removal of the illegal trespass, plus damages. The court decided that the owner could not complain, because there was no illegal trespass and dismissed the lawsuit.

The court underlined that the owner failed to comply with the conditions of the building permit and kept the fence without a certificate of final approval, therefore illegally, in violation of article 20(1)(c) of the Streets and Buildings Law, Cap.96. The owner under the circumstances must comply with the conditions of the permit and obtain a certificate of final approval in order to have the part of the property registered as a public road. The part of the property which his predecessor agreed to part with does not belong to him, but to the authority.

The court referred to a similar judgment with which it agreed, where it was decided that a plaintiff had taken advantage of the provisions of a permit. He proceeded and erected all the buildings provided for in the permit, but he failed to comply with the condition imposed to grant a part of the property to the public as a road.

According to the court, the plaintiff had three options, to not implement the permit, to appeal to the administrative court and challenge the legality of the condition, or to implement the permit. The plaintiff chose to implement the permit and therefore was prevented from applying for an order to stop the alleged trespass, as well as damages. The granting of part of the property to the public constitutes part of the permit. He had no right to choose the part of the permit that suited him, reject the obligation imposed on him and then ask the court for various remedies based on his omission. This would be against the basic principle of law that no one can take advantage of his own omission.

 

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

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