Every tenancy, either contractual or statutory, creates rights and obligations both to the landlord and the tenant arising on the basis of the terms of their agreement, which may be either oral or written. A significant factor to be taken into consideration is the possession of the property and whether or not it was given to the tenant at the beginning of the tenancy or to the landlord at its termination, at what time and under which terms. Possession creates or restricts rights or obligations and may release the tenant who gave up possession of the property from obligations. In the event that the tenant terminates the tenancy agreement according to its terms, but fails to give up possession of the property to the landlord, a question arises as to whether retention of possession negates the termination.

The notice of termination constitutes a unilateral act of the tenant and it does not depend on the consent of the landlord when the tenant acts upon his contractual rights. For the purpose of answering the aforesaid question, the contents of the notice are examined, as well as whether or not the notice was rightly given, what was its effect and whether or not the tenant delivered possession of the immovable property on the basis of the notice. When the tenant exercises his contractual right and delivers possession of the property, the tenancy is terminated and the tenant is released. In the event that he has obligations towards the landlord, such as rents in arrears or restoration of the property to the condition it was at the beginning of the tenancy, he has to fulfil such obligations towards the landlord. However, retaining possession of the property by the tenant negates the notice of termination and may constitute a reason for eviction.

Revocation of the notice of termination of the tenancy by reason of not delivering possession of the premises constituted the subject matter of a judgment of the Rent Control Court issued upon an application of a landlord claiming the eviction of the tenant, rents in arrears, means profits and damages caused to the premises. The tenant, despite sending a notice of termination, kept possession of the premises and the Court examined whether the tenant was estopped by his conduct from invoking the notice, as well as the lawfulness of his termination. It is noted that simultaneously with the termination of the tenancy by the tenant, the landlord also terminated the tenancy agreement, since the tenant owed rent in arrears and despite giving him 21 days notice to pay them, he did not respond. The termination of the tenancy by the landlord was deemed lawful but the termination of the tenancy by the tenant was not, since it was not justified on the basis of the terms of the tenancy agreement. Furthermore, the tenant kept possession of the premises and did not pay the rent despite the landlord’s notice to do so.

The Court also held that the notice of termination on behalf of the tenant was negated by his conduct since he remained a contractual tenant as per the terms of the tenancy agreement until the receipt of the lawful notice of termination by the landlord. The landlord could simultaneously have invoked provisions of the Rent Control Law, where it is stated that if the tenant sends a notice that he will abandon the rented property and the landlord acts upon it, but the tenant does not abandon it and the landlord suffers damages, this constitutes a reason for eviction.

Under the circumstances, the fact that the tenant stayed in the property rendered him a statutory tenant, given that he was not precluded in any way whatsoever from quitting possession of the property, in which case the statutory tenancy would cease. Nevertheless, he quit neither the physical possession of the property nor its legal possession. Furthermore, the tenant, as well as his guarantor, had the obligation to pay the rent until the delivery of possession to the landlord, as well as restoring the property in the condition it had been at the beginning of the tenancy.

The court held that the facts in the particular case were distinguished from the instance where the parties had agreed to terminate the tenancy and give up possession of the property at a specific point in time, since in the present case this constituted a unilateral act of termination without the tenant abandoning the premises. The court did not concur with the tenant’s claim to shift the responsibility for the delivery of possession of the property to the landlord and issued a judgment both against the tenant and his guarantor for the rent in arrears, means profits until the delivery of possession and for damages to the property.

George Coucounis is a lawyer specialising in the Immovable Property Law, based in Larnaca, e-mail [email protected], Tel: 24 818288