The principle of right and obligation

The principle of right and obligation

by George Coucounis

“He who takes the benefit of a transaction must also bear the burden”

It is a basic principle of law that a person who chooses to accept a right that involves at the same time the fulfilment of an obligation, is not allowed to obtain the benefit and be released from the obligation. The simultaneous existence of the right and the obligation, where the one is under the condition of the existence of the other, prevents the beneficiary from taking advantage of what the right provides him and reprobating the obligation. Such conduct cannot be accepted, since the approbation of the right, prevents him from claiming that he is not subject to the obligation. This phenomenon can be observed in the case of a town planning or building permit, where the owner omits to fulfil a condition imposed on him when the permit is granted. The owner, if he accepts the permit and proceeds with the development, is considered to approbate it and that he has been benefited by it. He is therefore prevented from challenging afterwards the condition imposed on him and not fulfilling it. The conditions of the permit are an integral part of it and make it indivisible.

The dimension of the issue is clearly seen when an owner applies to the competent Authority, secures the building permit and gives his written consent to a condition imposed, such as the granting of a certain part of his property to be registered as a public road. While securing the benefit, he does not proceed to obtain the certificate of final approval in order to update the title deed of his property and register the road. Keeping the registration of the whole property on the title deed does not legitimize the owner to file a lawsuit against the competent Authority for trespass in the part of the property affected by the granting of the road, and to request the removal of the alleged illegal trespass and damages. Such a claim has no chance of success, as the owner is prevented by the principle of right and obligation.

A judgment issued by the District Court of Famagusta dated 2.2.2022 deals with the above principle, where the predecessor of the owner accepted the issuance of a building permit to construct a fence, which at the same time imposed a condition for granting part of the property as a public road. Although he constructed the fence and gave his written consent to the granting of the public road, the new owner filed a lawsuit against the competent Authority, which constructed the road, claiming that the Authority committed illegal trespass in the part of the property; he also claimed an order for the removal of the illegal trespass, plus damages. The Court decided that the owner could not complain, because there was no illegal trespass by the competent Authority and dismissed the lawsuit.

The Court underlined that the owner failed to comply with the conditions of the building permit and keeps the fence without a certificate of final approval, therefore illegally, in violation of article 20(1)(c) of the Streets and Buildings Law, Cap.96. The owner under the circumstances must comply with the conditions of the permit and obtain a certificate of final approval in order to have the part of the property registered as a public road. Therefore, he cannot have any valid complaint against the competent Authority for illegal trespass. After all, the part which his predecessor agreed to grant does not in fact belong to him, but to the Authority.

The Court referred to a similar judgment with which it agreed, where it had been decided that the plaintiff had taken advantage of the provisions of the permit. He proceeded and erected all the buildings provided in the permit, but he failed to comply with the condition imposed to grant a part of the property to the public as a road. According to the Court, the plaintiff had three options, either not to implement the permit, or to appeal to the Administrative Court and challenge the legality of the specific condition, or to implement the permit. The plaintiff chose to implement the permit and therefore he was prevented from claiming an order to stop the alleged “illegal trespass”, as well as damages. The granting of part of the property to the public constitutes part of the permit. He had no right to choose the part of the permit that suits him, reject the obligation imposed on him and then ask the Court for various remedies based on his omission. This would be against the basic principle of law that no one can take advantage of his own omission.