Right of Specific Performance

The right of specific performance

George Coucounis describes how the right of specific performance belongs to the purchaser and can be exercised if a separate title deed for the sold property in Cyprus is issued.

There are many people who do not understand the meaning of the right of specific performance and who are entitled to it. They believe that when a person purchases an immovable property in Cyprus and has the sale contract deposited at the Land Registry, he acquires the said right immediately. This is not quite so, since there are certain provisions stated in the law which must be met before such right is exercised.

The deposit of the sale contract at the Cyprus Land Registry, in accordance with the provisions of the Law, Cap. 232, creates an estate in land upon the property purchased and if it has no separate title deed, upon the land where the property is or will be built. For a sale contract to be accepted and deposited at the Land Registry, the vendor must be the registered owner of the land or a co-owner who has entered into an agreement with the other co-owner/s regarding the development and the distribution among them of the land or of the properties to be built. Furthermore, it is essential for the purchaser to be informed whether the land or the property to be purchased is mortgaged or not, since if there is a mortgage, the sale contract ranks after the mortgage and after any other encumbrance already affecting the property, thus the sale contract is subject to any existing encumbrance.

The deposit of the sale contract at the Land Registry is a very serious action which protects the purchaser and secures the purchase.

The notification of the sale agreement with the aforesaid manner makes known to the public the estate in land created and makes the purchaser the beneficial owner of the property purchased. Thus, the purchaser acquires the aforesaid right which affects the land independently of who the owner is and he can exercise it at the right time, if the circumstances allow him to seek the remedy of specific performance through an order of the Court. For such remedy to be claimed, the purchaser must be sure that the property he purchased has a separate title deed or the deed has been issued and the vendor refuses to transfer it.

Hence, there are two categories of properties, the properties with a separate title deed and the ones which are to be built and have no separate title deed.

In the first instance, the right of specific performance can be exercised within six months from the date of the last payment as provided in the sale contract or at any other time stated therein. In the second instance, the said right can only be exercised when a separate title deed is issued, provided also a copy of it is sent to the purchaser via double registered post. In both cases, the purchaser must call the vendor to appear before the Land Registry so that to transfer the property to him and the vendor to refuse to do so.

The purchaser must be careful not to claim the right of specific performance through a Court order if the property he purchased has no separate title deed. Such remedy is not available without the existence of a separate title deed. Therefore, the purchaser who seeks the said remedy will not succeed and his right will be limited to damages for the loss he has suffered and he is obliged to return the property to the vendor. The right of specific performance enables the purchaser to apply to the Court to seek an order for the transfer of the property into his name without the participation of the obliged vendor who refuses to make the transfer. The purchaser with the Court order in hand is entitled to submit it to the Land Registry and request the Director to transfer the property into his name upon payment of the transfer fees. According to the law, the said order is valid for three months from its issue, unless it is renewed by the Court.

In the event the vendor goes into liquidation or becomes bankrupt, the right of the purchaser remains unaffected and can be exercised against the vendor through the official receiver. The purchaser before filing an action against the obliged vendor through the official receiver, he must apply to the Court to secure an order allowing him to institute the legal action accordingly. Otherwise, the purchaser will not succeed and his action will be dismissed.

It can be seen from the above how sound the legal system is in Cyprus with regard to the sale of an immovable property and the rights of the purchaser which are properly safeguarded.