The rights of property co-owners

The right of ownership takes precedence over possession, unless it was acquired as a privilege or right and registered with the land registry

The right to own immovable property, and by extension co-ownership, is protected by Article 23 of the constitution and all co-owners have the same right to possession and enjoyment of a property as the others. As long as a co-owner’s rights are not limited by an agreement to grant possession to another and a right or privilege was not granted and registered with the land registry, based on the provisions of article 4 and 11(a) of the Immovable Property Law, Cap. 224, which refer to the right of enjoyment and lifetime possession, a co-owner cannot be evicted or excluded by another.

Co-owners on the basis of the right of ownership, have a joint right to possession and enjoyment of the property, as is the case with tenants in common. Any act intended to evict or exclude or prevent a co-owner from entering, occupying and using a commonly owned property, constitutes unlawful interference and creates an actionable right for trespass against the offender.

In this case, the evicted or excluded co-owner is entitled to claim a court order to restore them to joint ownership, an order to give an account where there is income, as well as damages for any loss of rent. In the case of a lawsuit where illegal trespass is proven, but no evidence given to prove damage due to loss of use, an order is issued for the recognition, protection and restoration of the right of possession and for providing an account and nominal damages, which are usually awarded in the amount of €100, plus costs.

A question of co-ownership usually arises between relatives who do not agree on what to do with a property, how to separate it or on selling and how to distribute the proceeds of the sale. When co-owners do not co-operate with each other, the solution offered is to sell the property by public auction.

An informative decision indicating the power and value of the right to property was issued by the Supreme Court in C.A.336/2014 on July 13, in which the court, analysing jurisprudence, concluded that the court of first instance correctly ruled that the right of ownership takes precedence over possession, unless the latter has been acquired in such a way as to operate as a privilege or right to the detriment of the right of ownership, by entry in the books of the land registry.

The owner of a house with auxiliary rooms in the yard, transferred half a share to his daughter and subsequently signed an agreement with his ex-wife granting her the lifetime right to possess and use the house with their daughter, as well as the right to rent the auxiliary rooms and manage the income. The co-owner subsequently remarried and transferred the other half to his wife, who demanded that the daughter and ex-wife residing in the residence allow her to reside there as well, but was denied.

The case ended up in court following an action by her against the daughter and ex-wife and she succeeded in securing an order ordering them to allow her and her dependents to freely enter, occupy and use the house, an order prohibiting them preventing her taking furniture into the house, an order against the daughter to give her a key to the house and the auxiliary rooms and a judgment for €100 in nominal damages.

In the appeal by the daughter and her mother, the Supreme Court approved the first-instance decision and the relevant jurisprudence cited, and indicated that it was decided that the co-owner can sue the other co-owner for unlawful interference, if they have been evicted or deprived of their property. The respondent-co-owner never decided to limit the right to her property, nor did she grant possession of the disputed house to any of the appellants by agreement.

The court of first instance rightly ruled that the agreement cannot bind the respondent, even if she acquired the property later. The respondent deserved the acquisition and a contrary view would deprive her of the enjoyment of the property and of this constitutionally guaranteed right of ownership.

George Coucounis is a lawyer specialising in the Immovable Property Law, based in Larnaca, e-mail [email protected], www.coucounislaw.com