16 Apr Stay of execution of an eviction order
Stay of execution of an eviction order
by George Coucounis
A statutory tenant against whom an eviction order from a building was issued for the purpose of demolition, is entitled to a stay of execution until his appeal is determined; otherwise the appeal will become of no substance, the building will be demolished and the tenant will lose the right to restitution. The Rent Control Law protects the statutory tenant to a greater extent in the case of a landlord who seeks to evict the tenant from a building for demolition. To this end, the legislator allows repossession, provided the demolition does not constitute an abuse of rights by the landlord, i.e. when the demolition is not the bona fide development of the property or when there is no need to demolish it due to it being dangerous. When an eviction order is issued for demolition and the tenant files an appeal, he has to apply firstly to the court of first instance that issued the order and ask for a stay of execution, as the appeal alone does not suspend the right of execution. In the event the court rejects his application, then he is entitled to submit an application to the Supreme Court and request the suspension of the execution of the judgment.
The Supreme Court examined the above in a judgment issued on 30.10.2020, where a statutory tenant filed an appeal against the judgment of the Rent Control Court and an application for a stay of execution of the eviction order, but the court rejected it. The tenant thereafter filed a new application to the Supreme Court requesting the suspension of the execution of the eviction order until the determination of the appeal. The court of first instance rejected the application on the grounds that if the requested stay of execution was not issued and the tenant succeeded in his appeal and in the meantime the property in question was demolished, it would have been impossible to reinstate the tenant in the property, but he would have been compensated with the amount the court awarded him and with the possibility the Supreme Court to award him further compensation. The court concluded that the possible success of the appeal would not lose its significance or be of no value, so it considered that the stay of the execution of the judgment was not justified.
The Supreme Court disagreed with the judgment of the court of first instance, stressing that the tenant did not pursue the position that the prospect of success of the appeal constitutes a factor for which stay of execution of the order should be given. What the tenant argued is that, if the execution of the judgment is not suspended, the appeal would lose its effectiveness and will become nugatory, as it will be impossible to restore him in the possession of the premises. The Court added that the case is not such that the prospect of success of the appeal is crucial to the outcome of the application for suspension. This should be judged on the basis of the balancing of the conflicting rights of the parties.
It was not disputed by the landlord that the tenant used the premises for his business. It is therefore clear, as the Court states, that if the eviction order is not suspended and the landlord takes possession of the building and demolishes it, then if the appeal succeeds and the eviction order is annulled, the tenant will not be able objectively to be restored in possession of the premises and to re-operate his business there. The Court referred to case law, where it was decided that the solvency of the landlord to compensate the tenant for the loss of the use of the premises, which had not been disputed, could not be equated with the possession of the premises to which the appeal was intended, just to indicate the importance of the irreversible impact of the final loss of the right to use the premises.
The main issue raised in the tenant’s appeal, as the Court mentions, is that the eviction order was issued for demolition purposes, while the landlord did not advance this ground of eviction. The landlord who succeeded in regaining the right of possession of the building for demolition