If a beneficiary does not comply with a judgment obtained upon condition, they are deemed to have abandoned it

The wording of a court judgment or order is significant and determines the rights of the parties. If a person does not comply with the conditions, they are deemed to have waived or abandoned the judgement or order.

An example of such a judgment is one that provides for the payment of an amount of compensation which must be paid at the same time as the delivery of possession of a property on a specific date. If there is no delivery of possession on the specified date then due to non-compliance the right to compensation is deemed to have been abandoned.

This interesting matter was examined by the Court of Appeal in CA 101/2018 dated April 23 in relation to the consent judgment of the Nicosia Rent Control Court which provided for the eviction of a tenant and delivery to the owner of the property with stay of execution until July 21, 2017.

The judgment provided for the owner to pay the tenant the amount of €18.000 in compensation. The amount according to the judgement would have been paid simultaneously with the delivery of possession and provided that this will take place on or by July 31, 2017.

The property was not delivered on time and was delivered a few days later on August 7, with the keys being handed over to the owner’s solicitor. A dispute arose between the parties as to whether or not the tenant was legally obliged to hand over the property by the deadline, but regarding the reasons he did not do so.

The owner considered that the delivery was overdue and therefore there was no obligation to pay the tenant the amount of €18.000. The tenant thought otherwise and, in view of the non-payment of the amount, proceeded to issue a writ of movables for the seizure and sale of the owner’s movable property.

The owner responded with an application requesting an order setting aside the writ of movables and a declaratory order that the tenant was not entitled to claim the amount of €18.000 due to his non-compliance with the condition of the judgement to hand over the property by July 31, 2017. The owner’s application was dismissed by the trial court after a hearing and the owner appealed the judgment.

The Court of Appeal held that the obligation to pay the amount of €18.000 was connected with and absolutely dependent on the delivery of the property by the given date and not at any other later date. Timely delivery was an indispensable condition for the creation of the obligation to pay the compensation. He found the owner’s grounds of appeal valid and referred to Order 40, rules 2 and 3 then in force.

In relation to the trial court’s reference to Order 42 of the Rules of Civil Procedure, Execution by Sale of Immovable Property, which indicated that an endorsed order should be personally served to the person ordered to comply with it and that orders not served in time are not personally enforceable, the Court of Appeal held that this was not the case.

Based on the consent judgment, the obligation to deliver by the fixed date, consented to and expressly chosen by the parties, was imperative and absolute. There could be no explanation or justification for late delivery. The Court of Appeal decided in favour of the owner and set aside the judgement of the court of first instance.

Having all the evidence before it, the Court of Appeal granted the requested remedy by issuing: (a) an order setting aside the writ of movables for the seizure and sale of the owner’s movable property and (b) an order declaring that, because the tenant failed to fulfill the term of the consent judgment for delivery of the property in question by the given date, he abandoned the judgment in regards to being awarded the amount of €18.000 and he was not entitled to claim or collect this amount from the owner.

George Coucounis is a lawyer specialising in immovable property and the founder of George Coucounis LLC, based in Larnaca, [email protected], Tel: 24 818288