19 Nov Landlord refusing to collect rent
Landlord refusing to collect rent
by George Coucounis
“His refusal gives the tenant the right to be heard even though the rent has not been paid”
THE behaviour of the landlord and the tenant is examined by the Rent Control Court and in the event the landlord refuses to collect the rent or contributes to its non-payment, the Court will give the tenant the right to be heard. The amendment made by Law 3(i)/2020 limits the right of the tenant to file a reply to an application for recovery of possession, that the reply must be accompanied either by proof that the amount due as rents in arrear was deposited with the Court or by proof that it has been paid to the landlord or his representative or to a banking institution for his benefit. However, the Court in order to allow the tenant to file a reply, does not only consider the issue of his omission, but also the reasons that led to it and whether the landlord with his conduct actually refused to collect the rent. The examination of these facts ensures the principles of natural justice and the tenant’s right to a fair trial without deciding at this early stage whether the non-payment of the rent was justified as a result of the landlord’s behaviour.
A provision was added to the amendment that the decision of the secretary of the Court to accept or reject the tenant’s reply is submitted to the Court within three working days for final approval or dismissal and the decision of the Court is not subject to appeal. It is at this stage that the Court decides whether it will accept or reject the filing of the tenant’s reply, giving the reasoning of its decision. If the landlord does not agree with the decision of the Court to accept the reply of the tenant and considers that the tenant is in abuse of the procedure since he does not pay the rents due, may file an application to have the reply struck out or set aside.
The above were examined by the President of the Rent Control Court in his judgment issued on 16.11.2021 in an application made by the landlord who claimed the recovery of possession of the house and rents in arrear. The tenant filed a reply and gave an explanation for the reasons for the non-payment of the rent. He attributed the omission to the landlord who did not accept to sign a tenancy agreement as they had agreed, so that the landlord to continue collecting the rent from the Department of Benefits, which used to pay it by bank transfer to the landlord’s account as the tenant receives minimum guarantee income. The filing of the reply was accepted after leave of the Court, which considered that the reply raises issues concerning the non-payment of the rents attributed to the intention of the landlord. Since the issue does not appear to be purely a matter of a simple delay in the payment of the rents, the Court considered that the reply should be allowed to be filed.
The landlord responded with an application to strike out and set aside the reply, however the tenant filed an objection. The Court, taking into account the legal framework and the relevant facts, concluded that the acceptance of the reply was the result of evaluating all the necessary facts and in particular the tenant’s defence, which was assessed as not being general. To the contrary, in a simple but clear way, the tenant extends and connects his own omission with the change of the attitude and behaviour of the landlord. How the above affect the claim for the recovery of possession, it is neither fair nor reasonable to be examined in the absence of the tenant. Ensuring the principles of natural justice and the tenant’s right to a fair trial exceeds the rights of the landlord under the new article 11(1)(a) of the Rent Control Law, without of course at this stage deciding the final outcome on the tenant’s line of defence.
The Court added that the whole issue at first sight does not appear to be only of one dimension as the landlord attempted to demonstrate nor is it limited to the examination of the provisions of article 11(1)(a) of the Law. In legal terms, the issue in question may be related, on the one hand, to the determination of the actual terms of the tenancy and the effect on them of article 27 of the Law and, on the other hand, to the principles related to the finding of an estoppel or a waiver of right and consequently, the Court dismissed the application to strike out the reply.