The owner has the choice of whether to allow the sub-tenant to stay in their premises

One of the grounds for evicting a statutory tenant is subletting despite this not being allowed. When a tenant, despite the express prohibition in the rental agreement not to sublet, assigns or grants permission to a third party to use the rented premises, this violates their obligation not to sublet, article 11 (1) (d) of the Rent Control Law 23/83. The same applies in the event that the tenant has sublet or otherwise parted with the possession of all or any part of the property and makes, either directly or indirectly, a profit which in relation to the rent he pays is unreasonably disproportionate, article 11 (1) (e).

Usually in rental agreements there is an express provision that the tenant does not have the right to sublease, assign or licence to a third party, all or part of the rented premises, without the prior consent of the owner. However, it could be allowed if the tenant forms a company or gives possession to members of their family, or the owner, despite the prohibition, may not be entitled to unreasonably refuse to give consent. The content and terms of the tenancy agreement are a primary element which the court will consider in deciding whether to issue an eviction order, as well as the identity of the natural persons in the property and other relevant circumstances.

It is a necessary condition that the owner sends or serves a written warning to the tenant at least one month in advance, asking them to vacate the premises. Furthermore, the tenant must be statutory, a status they acquire when the time period of the first rental has expired but they retain possession of the property. Also, the property must be located within the boundaries of an area controlled by the Rent Control Law, the premises must have been completed before December 31, 1999 and have been rented or offered for rent on that date.

Subletting can be an independent or severable ground for eviction, as long as the owner convinces the court that subletting has taken place and that the grounds for the issuance of a recovery order are met. The payment of the rent, for example, by a company instead of the tenant does not in itself prove subletting or renting of the premises or its possession by it. Evidence is needed to prove that the tenant has been alienated from possession and that the new person residing or carrying out business in the premises is not the tenant.

According to article 28 (1) of the law, the court may issue an eviction order against both the tenant and the sub-tenant when the tenant is prevented by the terms of the tenancy from subletting or where the sub-tenant uses the premises for illegal or unethical purposes. The order for recovery of possession should state whether or not it will be enforced against the sub-tenant. The option rests with the landlord and it is possible to issue an eviction order against the tenant only and keep the subtenant in the premises.

The President of the Limassol Rent Control Court in a decision concerning a statutory tenant who was in arrears and claimed to have sublet, held that the tenant at no stage secured the landlord’s consent to sublet the premises. Nor did he inform the owner of the sublet before the commencement of the legal proceedings between the parties, despite his express and continuing obligation to obtain the consent of the owner before subletting. The fact that the landlord had no right to unreasonably refuse to grant his consent did not negate the tenant’s obligation to approach him for consent.

The court held that the tenant was prevented from subletting, since the right was subject to conditions which were not met. The circumstances warranted the issuance of an order for the enforcement of the eviction order against the subtenant and the court issued the order against the tenant for non-payment of rents, to be enforced against any subtenant as well.

George Coucounis is a lawyer specialising in the Immovable Property Law, based in Larnaca. E-mail: [email protected], tel: 24818288