Cyprus Property Forum for Buyers, Sellers & Investors

We purchased a property with a garage five years ago, the property was not brand new at the time and is now approx eight years old. Last week we were served with a Court Summons for the garage which was built apparantly without planning permission which we were not aware of or had any part in the build of it.

We were shocked that the summons has been served on us and not the developer but have been advised that as we are now the owners of the property we are responsible for it and therefore the summons and any subsequent action & fines will be attributed to ourselves.

Can you please confirm that as the current owners this is correct and we are to be held responsible by the Courts? We have just submitted the form under the amnesty regulations as we are now aware of the infringement, but as the Court Appearance is scheduled for the 2nd November not too sure what will now happen.

Incidentally we do not have the Title Deeds as yet as unfortunately there are many other issues.

Hello rhino and welcome to the forum.

Firstly, you are not the 'current owners' of the property (even though you may have paid for it in full).

The owner of the property is the person in whose name it is registered (as shown on its Title Deed) which has yet to be issued. In this situation it is almost certain that the property developer who is the legal owner of the property.

Until such time as its Title Deed has been issued and ownership of the property has been transferred to your name, the property developer is solely responsible for the property and any additions or changes (legal or otherwise) that may have been made.

I suggest you take legal advice on the matter.

Unfortunately, Louise rarely visits the forum these days, but if you wish to get in touch with her you can find her contact details on the list of lawyers provided by the British High Commission in Nicosia, a copy of which you can download by clicking here.

Regards,

Many thanks for your reply, we did seek legal advice re this summons and unfortunately it was our Lawyer who advised us that we are responsible as the owners and residents of the property! (Paid in full except taxes/transfer fees). Not too sure where we can go from here, is there a legal document that you know of to which we could refer?

We did express our concern and exasperation that we should be summonsed for something we had no part in building but she appeared very sure in what she was saying, she even went on to say that if something had been built 100 years ago and was found to have no planning permit then the current owners/residents would be summonsed, and that this was the law in Cyprus?!

rhino,

I suggest you get a second opinion on this matter from one of the lawyers on the list provided by the British High Commission in Nicosia. You can get that list at http://ukincyprus.fco.gov.uk/resources/ ... yers-north

You should also ask your present lawyer why she did not advise of the illegal garage when you purchased the property - she would have discovered this problem if she'd done her job properly.

Regards,

That law is very broad in Cyprus for some reasons. Particularly the article 3(b) of Roads and Buildings Cap.96 provides, inter alia, that you are guilty not only if you take part (actively) to the contracting of the building, but also when you suffer or permit the contracting of the building by someone else. Both “suffer” and “permission” require the existence of your knowledge. It is difficult to prove that (having the possession of the building as the not-registered owner) you did not have the knowledge about the legal status of the building you had purchased. The prosecutors usually use this trap: they say that the offences of the article 3 are continuing offences; therefore they stress that “you now have the knowledge that the garage is illegal, even though you found yourself in front of an accomplished situation, what did you do when you got informed about the illegal status of the building?”.

Normally the developers should be charged with you. Please note that the existence of any contractual provision does not affect the criminal procedure; it is something that has an “inside” effect only in the relationship between you and the developer; you can therefore take a civil action against the developers for breach of contract, if they did not obtain all the required permissions for the purchased property. You can also bring the contract to the criminal court supporting that the addition of that clause was everything you could do in order to protect yourself from any illegality concerning buildings laws (not sure if the court will accept it as defense or just as a point of mitigation of punishment). If this is the only charge give a copy of your contract to the other side and say "I bought a ready building with its unknown illegalities". These cases are "private criminal cases", the lawyer of the other side may explain the situation to his/her clients (municipality or muchtar) and take their instructions to withdraw the case, or he/she may be inexperienced in using this law. Municipality or muchtar instruct all the interested lawyers to take legal actions based on this law, there are many young lawyers that applied to undertake this kind of cases.

The criminal court in this case will impose a fine and will be asked by the prosecutor to issue an order for demolition. There are some useful defences (statutory and common law) that you can use attempting the not issuance of that order (e.g. the garage cannot be dissociate from the legal part of the building and the demolition of the illegal part will affect the legal part and this punishment would be unreasonable in relation to the severity of the offence etc); your lawyer will explain to you. If the order is to be issued, then you can ask for the execution of the order of demolition to be suspended for 2 months (the maximum).

Is also there a charge for using the property without a certification of final approval? If so, then it is easier for the prosecutor to base his/her case on this charge in order to success the same result (fine and demolition order). There are not many defenses for this charge.

Dear JaneDoe

Thanks you for your reply - if what you say is correct, it appears that the laws in Cyprus do not protect the party who has been injured by the illegal activities of others.

In this case 'rhino' is the injured party and those who should be held to account in law for their illegal activities are:

a) The party who constructed the garage without having first obtained the necessary permissions and permits from the Planning Authority.

b) The owner of the property, i.e. the developer, who - by not preventing the construction of the illegal garage - allowed with the party who constructed the garage to break the law.

I would also say that the lawyer acting on behalf of 'rhino' failed in her duty of care towards her client. She should have ensured that the property 'rhino' was purchasing was built in accordance with the the permits issued for its construction and the approved plans.

Foreigners buying property in Cyprus are often advised that the property laws are the same as they are in the UK. In the UK, a lawyer failing to investigate the legality of a property that their client was buying, etc. would most probably be fined heavily and ordered to pay compensation to their client. In serious cases they would lose their licence to practice law.

Regarding the point about using the property without a certification of final approval. Under Article 10 of the Streets and Buildings Law CAP. 96 it is a criminal offence to occupy a building that has not been issued with a Certificate of Approval or to cause such a building to be occupied. This law is almost universally ignored although residents in Paphos have been summonsed on more that one occasion to appear in court to face charges.

I have to say that if this case is brought before a court in Cyprus and the 'rhino', as the injured party, is found guilty of committing a criminal offence, it will cause even more harm to the real estate market that is in enough trouble already.

Regards,

Dear Nigel,

Of course, if a lawyer undertook the duty to investigate and inform his/her client about the legal status of the purchased building and he/she failed to do so (he/she did not act in the way in which a reasonable lawyer would act under the same circumstances), with a result the purchaser to suffer a damage, we could talk about (prima facie) professional negligence. This is very theoretical.

UK legal principles are applied for interpretation purposes and some other characteristics of UK laws were also adopted, but each country has definitely its own laws (responding to their different social and other needs). Comparatively, the European countries have now many common lines in their laws.

Good luck rhino.

JaneDoe wrote:This is very theoretical.

Perhaps - but last year there was a landmark ruling by the Supreme Court in which it found a Cypriot lawyer professionally negligent and liable to compensate a British couple for money they lost as a result. More at Landmark ruling by the Supreme Court.

It would be interesting to know how the Cyprus Bar Association reacted to the ruling - and whether it issued guidance to lawyers on the checks they must carry when conveyancing property to avoid further cases of this nature.

Regards,

Thank you both very much for your information. The information Jane has given certainly although unfortunately does back up what our solicitor said but in a much clearer to understand way. Guess we will now just have to see what happens in Court. Do you know if by submitting the amnesty statement if this will delay matters or even halt any proceedings?