30 May Issuance of title deed by the purchaser
Issuance of title deed by the purchaser
by George Coucounis
“The Law gives the purchaser the right to issue the title deed of the property purchased”
THE deposition of a sale contract at the Land Registry safeguards the rights of the purchaser, who, as long as he fulfils his obligations, may claim the specific performance of the agreement and any other remedy he is entitled to against the obliged vendor. According to the Specific Performance Law, the purchaser is entitled to claim both the specific performance of the contract for the purpose of transferring the property into his name as well as the vendor to fulfil his obligations, take all necessary steps for the issue of the separate title deed and bear the costs thereof. If the contract is made for the purchase of an apartment or a house under construction and it has defects or bad workmanship, the purchaser has the right to also claim the costs for their repair, the consultants’ remuneration and any other additional costs incurred as a result of the vendor’s failure to comply with his contractual obligations. Moreover, if the contract provides for the payment of the balance of the purchase price upon transfer, the Court will order the purchaser to pay it upon the transfer of the property to him. An order for specific performance is issued provided the relevant provisions in the Law are met, i.e. the contract of sale must have been deposited at the Land Registry and that there is no issue of statutory limitation.
If the obliged vendor refuses or omits to fulfil his obligations deriving from the sale contract, the Court has the discretion to order its specific performance and appoint another person or the purchaser to take all necessary measures or steps for the issuance of the title deed. The Supreme Court in a unanimous judgment issued on 19.5.2022, found that the Court of first instance was wrong in not issuing the order for specific performance and for the issuance of the title deed. In this respect, it referred to article 7(1) of the Law giving the Court the power to issue an order for the specific performance of the agreement under any conditions it deems necessary. It pointed out that the particular agreement meets the prerequisites of article 6 of Law 81(I)/2011 in order to be specifically performed. There was no doubt that the sale contract was deposited at the Land Registry and there was no issue of limitation.
Based on the provisions of article 7(2), the Supreme Court held that the absence of a separate registration is not an obstacle for the issuance of the order for specific performance and referred to the wording of the Law. Article 7(2) provides that the order for specific performance of the agreement may provide for an order to take all necessary measures and steps to secure the necessary certificates, permits or approvals required by any applicable law to make a separate registration for the immovable property and or to appoint a person other than the vendor to take the necessary measures or steps or to replace him, as well as an order for the associated costs.
The Court of first instance issued a judgment and an order in favour of the purchaser for the delivery of the house to him and authorised him to sign on behalf of the vendor any necessary application or document for the completion of the house, as well as compensation. However, it did not issue an order for the specific performance of the sale contract and the issuance of the title deed, considering that the statement of claim of the action did not include such a claim and that there was no such an allegation in the pleading.
The Supreme Court held that the reasoning of the Court of first instance was wrong, since the statement of claim pleaded that the sale contract was deposited at the Land Registry and that the purchaser called on the vendor to honour it and to stop making excuses. The issue of specific performance may not have been properly pleaded, however, there were several elements in the statement of claim that justified the possibility of granting this remedy. In any case, this possibility is allowed by the essential facts that constitute the actionable right of the purchaser.
Weighing the facts of the case and considering the interest of justice, the Supreme Court held that it should not order retrial of the matter by the Court of first instance and proceeded to issue an order for the specific performance of the sale contract. It appointed the purchaser as the person suitable to take all necessary measures and steps in order to secure the necessary certificates, permits or approvals for the issue of the separate title deed of the house and concurrently with the transfer of the house to pay the amount due to the vendor under the agreement and the first instance judgment.