George Coucounis describes how the court in Cyprus has the discretion to order a tenant to comply with an agreement.
Premises which are used as a dwelling house or a shop are rented every day through an oral or written tenancy agreement. The period and the terms of the tenancy are stated in the agreement signed by the owner and the tenant. Where the premises have been completed prior to the 31st December 1999 and they are situated within the areas specified by the Rent Control Law and the tenant remains in possession after the expiration of the first tenancy, then he becomes a statutory tenant.
Thus, he has all the advantages and the protection given to him by the law with regard to the period of the tenancy and the rent payable, i.e. the tenancy becomes statutory from month to month or as otherwise the rent is payable and any increase in the rent must be ordered by the Court.
The tenancy agreement though is considered to have been expired its other terms, except the period of the tenancy and the rent, remain valid and in force, bind the parties and in particular the tenant. The law does not allow him to contravene any of the terms of the tenancy agreement which continue to bind him. That is a good reason for the tenancy agreements to be written.
Terms in the tenancy agreement which impose obligations upon the tenant to keep the premises in a good order and condition at his own expense and to repair any damage caused thereby or put restrictions upon him that he is not allowed to make any alterations, changes or additions without the prior written consent of the owner, continue to bind the statutory tenant. His obligation to comply is strict and in case the tenant contravenes any term of the tenancy, the owner has the right to claim from the Court to issue an order against the tenant. The Court has the discretion to issue mandatory orders against any statutory tenant who acts against the owner's rights in order for the tenant to restore the previous condition and to comply with the terms of the tenancy. In the event the tenancy is not statutory but contractual, the owner has the right to terminate the tenancy and to claim the eviction of the tenant from the premises.
The Supreme Court of Cyprus in a recent judgement explains that the issue of such an order against a statutory tenant is within the discretionary power of the Rent Control Law which is exercised judicially and based on certain criteria not being arbitrary.
In particular, with regard to the issue of mandatory orders, the criteria are briefly the following: (a) where the owner indicates that there is a strong likelihood to suffer a serious damage if the Court does not intervene, (b) where the damage caused by the refusal to issue the order is such that cannot be compensated, (c) the Court will refuse a remedy where compliance by the tenant with the order will be illegal. It must also be taken into account the expense the owner will sustain for compliance purposes, (d) if the Court leans towards issuing the order, then it must be examined whether the tenant is aware of what he has to do.
Regarding (c) criterion, the fact that it will be costly for the tenant to comply with the order, this could not be an obstacle in the issue of the order if it is shown that the tenant acted arbitrarily, illegally and against the owner's rights. Moreover, where the tenant expedited the construction of any building, despite the owner's protest, there is no general rule that the order must be issued. This fact can be simply taken into account in a proper case in favour of the issue of an order.
The facts of the above decision related to an owner of premises who rented it out as a restaurant under the terms of a tenancy agreement whereby the tenants became statutory. The tenants made certain alterations to the premises in violation of the agreement and without the owner's permission, i.e. they illegally constructed a loft with a bar and a staircase leading to it so that to use it as a sitting area. The also built a door connecting the restaurant with the neighbouring premises. The Court of the first instance issued an order only for closing the door and for the tenants to pay a certain amount of money by way of nominal damages. It did not order an issue for the demolition of the loft and the staircase and its bar.
The Supreme Court of Cyprus went further to what the Court of first instance had decided and justified the owner who was complaining for the non issuance of an order for the demolition of the loft and the staircase which were constructed illegally. It stated that the tenants made the aforesaid alterations arbitrarily without the owner's permission and without a permit from the town planning authority. The demolition of the staircase and the loft could not prevent the tenants from using the premises for the purpose they had rented it as a restaurant. Therefore, it issued an order for their demolition.
Whenever a tenant intends to make any change or alteration to demise premises, he can do so by firstly obtaining the written consent of the owner and the necessary town and planning permit. By doing so, he protects his rights and interests and avoids the issue of any legal proceedings against him.
George Coucounis is an experienced lawyer practicing in Larnaca, Cyprus.
Educated at University College (London) and Thessaloniki University (Greece), George is fluent in English and has been practicing law in Cyprus since 1982.