The law gives the purchaser the right to issue the title deed of the property purchased
Deposition of a sale contract at the land registry safeguards the rights of the purchaser, who, as long as they fulfil obligations, may claim the specific performance of the agreement and any other remedy they are entitled to against the obliged vendor.
According to the Specific Performance Law, the purchaser is entitled to claim both the specific performance of the contract for the purpose of transferring the property into their name and the vendor must fulfil their obligations, take all necessary steps for the issue of the separate title deed and bear the costs thereof. If the contract is made for the purchase of an apartment or a house under construction and it has defects, the purchaser has the right to claim the cost of repairs and any other costs incurred.
Moreover, if the contract provides for the payment of the balance of the purchase price upon transfer, the court will order the purchaser to pay to do so. An order for specific performance is issued provided the relevant provisions in the law are met.
If the obliged vendor refuses or omits to fulfil obligations, the court has the discretion to order its specific performance and appoint another person or the purchaser to take all necessary measures for the issuance of the title deed.
In a unanimous judgment issued on May 19 the supreme court found that the court of first instance in the case in question was wrong in not issuing the order for specific performance and issuance of the title deed. It referred to article 7(1) of the law giving the court the power to issue an order for the specific performance of the agreement under any conditions necessary. It pointed out that the particular agreement meets the prerequisites of article 6 of Law 81(I)/2011 in order to be specifically performed. There was no doubt that the sale contract was deposited at the land registry and there was no issue of limitation.
Based on the provisions of article 7(2), the supreme court held that the absence of a separate registration is not an obstacle for the issuance of the order.
The court of first instance issued a judgment and an order in favour of the purchaser for the delivery of the house to him and authorised him to sign on behalf of the vendor any necessary application or document for the completion of the house, as well as compensation. However, it did not issue an order for the specific performance of the sale contract and issuance of the title deed, considering that the statement of claim of the action did not include such a claim and that there was no such an allegation in the pleading.
The supreme court held that this reasoning was wrong, since the statement of claim pleaded that the sale contract was deposited at the land registry and that the purchaser called on the vendor to honour it. The issue of specific performance may not have been properly pleaded, however, there were several elements in the claim that justified the possibility of granting this remedy. In any case, this possibility is allowed by the essential facts that constitute the actionable right of the purchaser.
The supreme court held that it should not order retrial of the matter by the court of first instance and proceeded to issue an order for the specific performance of the sale contract. It appointed the purchaser as the person suitable to take all necessary measures and steps in order to secure the necessary certificates, permits or approvals for the issue of the separate title deed of the house and concurrently with the transfer of the house to pay the amount due to the vendor under the agreement and the first instance judgment.
George Coucounis is a lawyer practising in Larnaca and the founder of George Coucounis LLC, Advocates & Legal Consultants, [email protected]