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Property

Right of tenant to file a reply

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The tenant can apply to the rent control court for leave to file a reply

 

A tenant’s right of access to the Rent Control Court when arrears of rent and possession of leased premises are claimed, can be examined by the Court. A tenant is given the right to file an application for leave of the Court to file a Reply, stating that his purpose is not to abuse the procedure provided for in article 11(1)(a)(ii) and that there is no refusal on his part to pay the rents or cause unjustified delay in payment. The Court, in examining such an application, will decide if there are grounds to assess the tenant’s allegations and if they constitute a good reason to grant him leave to file a Reply.

The enactment of amending Law 3(I)/2020 links the tenant’s right of access to Court with his obligation to pay the amount claimed by the landlord. Although the amendment is aimed at tenants who are repeadedly remiss and the unjustified delay of the pending litigation, the legal wording “the amount due mentioned in the application as rents in arrear” presupposes the existence of a debt, which makes the wording problematic, as stated by the President of the Rent Control Court in his judgment issued on 25.5.2022.

In the particular case, the landlord filed an application claiming an order to repossess premises and rents in arrear. The tenant filed an application claiming leave of the Court to file a Reply, without complying with his obligation to pay the rents. He alleged that the duration of the tenancy was indefinite and that termination of the tenancy was illegal. If this were disallowed, it would constitute a violation of his constitutionally guaranteed right of access to Court as safeguarded by Article 30 of the Constitution.

The Court, examining the Rent Control Law in relation to the amendment stressed that when rents in arrear are claimed things are usually simple. The consequences of issuing a repossession order vary from drastic to irreversible, hence the issuance constitutes the most extreme intervention in the right of respect for premises. The right of access to the Court is guaranteed in the first paragraph of Article 30 of the Constitution. Although not an absolute right, but subject to reasonable restrictions, it must not be degraded in a way whereby its substance is destroyed. The European Court of Human Rights, in interpreting article 6.1 of the Convention, recognised that this right should be enabled to be exercised effectively.

The Court ruled that the aforesaid can only lead to the conclusion that the tenant has the right to apply for leave to file his Reply, without complying with the condition of paying the rents in arrear. The absence of explicit legal provision is replaced by the inherent power of the Court which derives from its judicial function. The Court held that the tenant’s application was correctly filed without constituting abuse of the process provided in the new article 11(1)(a)(ii) of the Law.

On the substance of the matter, the Court held that the tenant’s claim to be given the right to file a Reply was not based on a good reason. The existence, the amount and the non-payment of the rents claimed is not disputed. No reason was given for the non-payment of the rents, which confirms that what is practically sought is to cause unjustified delay. The allegation that the termination of the tenancy was illegal was also unfounded. The mere suggestion that the dismissal of the application leads to the violation of the constitutional rights of the tenant does not create the necessary basis for the examination of his claim and consequently the Court dismissed the tenant’s application.

 

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

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