09 Nov Including all co-owners in Court proceedings
Including all co-owners in Court proceedings
by George Coucounis
“The omission to include all the co-owners in the proceedings is fundamental and makes them invalid from the outset”
A number of premises which are rented, although they belong to co-owners, the rent is collected by only one of them. The co-owners may have distributed the properties between them even though they own co-ownership shares. Where a co-owner seeks to obtain an order against a tenant for the recovery of possession of the rented premises for his own use, whether the tenant is statutory or contractual, he ought to inform the tenant of the status of the co-ownership and that he is the beneficiary of the premises. If he proceeds with the eviction without making any reference to the distribution and the issue of co-ownership arises in the context of the testimony before the Court, there is a gap which cannot be remedied and his application will be dismissed. In every Court proceeding involving immovable property, the rule is that all the interested parties must be joined as litigants so that they will be heard as natural justice requires. The tenant may not admit the status of the ownership of the premises and the burden of proof is upon the owner to demonstrate that he fulfils the requirements set by law.
The issue of co-ownership is connected with the notice which the owner must give to the tenant and whether it is proper. Article 29(2) of the Rent Control Law refers to the service of notices and where there is replacement of the original owner, the new owner must duly inform the tenant of this change. The non-inclusion of all the co-owners in an application for the eviction of a statutory tenant so that the premises to be used by the owner and the notice given to the tenant, were dealt with by the Rent Control Court in a judgment issued on 29.10.2021. In particular, a company alleging that it was the owner of a shop claimed its repossession and referred to a tenancy between the company and the tenant and that it served him with a notice without him complying. The company also alleged that its claim was reasonable and that the issuance of the eviction order would cause less inconvenience than its non-issuance, without however giving specific details in relation to this allegation.
The tenant invoked the existence of a tenancy, stating that he was statutory and that he had taken over the possession of the premises by acquiring the business of the previous tenant and that he had incurred significant expenses to make the shop workable. He also referred to the history of the tenancy, emphasising that he had in the past been called upon for various reasons to return possession of the premises, which in his view showed that the owner’s claim was not genuine but motivated by other motives. Moreover, he disputed the existence of a proper notice because he was given a 21-day notice instead of one month as provided by law. During the hearing of the eviction application, it emerged from the testimony given by the owner that there are other co-owners and that the owner owns only a small share of the shop.
The Court in its judgment emphasizes that when a property is owned in undivided shares, no co-owner is presumed to have a better ownership right than the other co-owners. It is a well-established general principle that in cases involving immovable property, all interested parties must be joined as litigants, as the rules of natural justice require that any person whose rights are infringed or may be affected by a judgment should be given the opportunity to be heard. Failure to include all co-owners in Court proceedings has been characterised as a substantive procedural irregularity which invalidates the proceedings from the outset.
The Court further notes that in the event of the replacement of the original owner, as was the case at issue, it is for the new owner to duly inform the tenant of the change, since the latter, as a non-contracting party in the transfer procedure of the rented property, cannot know the relevant details concerning the new owner. The Court added that the tenant did not seem to have been properly notified as provided by article 29(2) of the Law. In the present case, the issue in question is not related to a claim for payment of rent, but an eviction order was sought for the repossession of the premises for the use of the company and therefore, under the circumstances, the omission was fundamental and could not be remedied. Consequently, the Court dismissed the application of the company with costs.