06 Jun Right of tenant to file a Reply
Right of tenant to file a Reply
by George Coucounis
“The tenant can apply to the Rent Control Court for leave to file a Reply”
THE tenant’s right to access the Rent Control Court in a way that is effectively and not theoretically exercised when arrears of rent and possession of the leased premises are claimed, can be examined by the Court. The tenant is procedurally given the right to file an application for leave of the Court to file a Reply, stating a good reason that his purpose is not to abuse the procedure provided for in the new article 11(1)(a)(ii) of the Law and that there is no refusal on his part to pay the rents or cause unjustified delay for their payment. The Court, in examining such an application, will decide whether there are grounds to assess the tenant’s allegations and whether they constitute a good reason to grant him leave to file a Reply.
The enactment of amending Law 3(I)/2020 connects the tenant’s right to access the Court when there is a claim for rents in arrear with his obligation to pay the amount claimed by the landlord. Although the amendment aims to address the tenants who repeatedly do not pay the rent and the unjustified delay of the pending litigation, the wording in the Law “the amount due mentioned in the application as rents in arrear” presupposes the existence of a debt, a fact which has highlighted the problematic wording of the amendment, as stated by the President of the Rent Control Court in his judgment issued on 25.5.2022.
In the particular case, the landlord filed an application claiming an order for the repossession of the premises and the rents in arrear. The tenant filed an application claiming leave of the Court to file a Reply, without complying with his obligation to pay the rents. He alleged that the duration of the tenancy agreement was indefinite and that the termination of the tenancy was illegal and unlawful, which he considered to be a valid defence and that he should be allowed to raise them through his Reply. Otherwise, if he were not allowed to do so, it would constitute a violation of his constitutionally guaranteed right of access to the Court as safeguarded by Article 30 of the Constitution.
The Court, examining the legal framework of the Rent Control Law in relation to the amendment made under Law 3(I)/2020, stressed without underestimating that when rents in arrear are claimed things are usually simple, the issue cannot be seen superficially. The consequences of issuing a repossession order can be from drastic to irreversible, hence the issuance constitutes the most extreme intervention in the right of respect for residence and business premises. The right of access to the Court is guaranteed in the first paragraph of Article 30 of the Constitution. Although this is not an absolute right, but a right that is subject to reasonable restrictions, they must not end up degrading it in a way that destroys its substance. For this reason, the European Court of Human Rights, in interpreting article 6.1 of the Convention, has recognised that this right should be enabled to be exercised effectively.
The Court ruled that the aforesaid can only lead to the conclusion that the tenant has the right to apply for leave to file his Reply, without complying with the condition of paying the rents in arrear as set out in the new legislation. The absence of explicit legal provision is replaced by the inherent power of the Court which derives from its judicial function and aims at the self-protection of the Law. Based on the facts at issue, the Court held that the tenant’s application was correctly filed without constituting abuse of the process provided in the new article 11(1)(a)(ii) of the Law.
On the substance of the matter, the Court held that the tenant’s claim to be given the right to file a Reply was not based on a good reason. The existence, the amount and the non-payment of the rents claimed is not disputed. No reason was given for the non-payment of the rents, a fact that confirms that what is practically sought is to cause unjustified delay. The allegation that the termination of the tenancy was illegal was also unfounded. The mere suggestion that the dismissal of the application leads to the violation of the constitutional rights of the tenant does not create the necessary basis for the examination of his claim and consequently the Court dismissed the tenant’s application.