30 Dec Decree prohibiting illegal real estate profession
Decree prohibiting illegal real estate profession
by George Coucounis
“The Court has no power to order service of the application when issuing a decree prohibiting illegal real estate profession”
THE exercise of the real estate profession by a person who is not a registered real estate agent and has no license, is illegal, he commits an offense and the Real Estate Agents Council may apply to the Court for the issuance of a decree that until the trial of the pending private criminal case against him is completed, he must cease to act and or exercise the real estate profession. The relevant provision of the Real Estate Agents Law, L.71(I)/2010, does not provide the Court with discretion to order the service of the ex parte application to the accused person. As long as there is an indictment making reference to the offenses and there is prima facie evidence connecting a specific office or premises to the offense under trial, the Court is bound to issue a decree prohibiting the accused person from exercising the real estate profession, as well as a decree suspending the use of any office or premises associated with the adjudicated offense. The decree is issued unconditionally, is not returnable and is valid until the trial of the private criminal case and the accused is not given the opportunity to be heard.
The application is filed in the context of a private criminal case submitted by the Real Estate Agents Council under the Real Estate Agents Law, article 34(1) and the provisions of article 32 of the Courts Law 14/60 or article 9 of the Civil Procedure Law, Cap.6, do not apply. The ex parte application is examined by the Court and if the relevant prerequisites of article 34(1) are met, the decree to suspend illegal activity is issued and no other provisions need to apply. The issuance of a decree by the Court ordering the service of the ex parte application to the accused in order to be heard is an act in excess of power or jurisdiction. In such a case, the Council may apply to the Supreme Court to issue a certiorari order annulling the lower Court’s decree ordering the service of the application.
The Supreme Court in a judgment issued on 21.12.2021 in the context of examining a civil application for the issuance of a certiorari, intervened and annulled the decree of the District Court ordering the service of the ex parte application filed by the Real Estate Agents Council to the accused. The Council filed a private criminal case and simultaneously an ex parte application for the issuance of an interim order ordering the accused to cease acting as a real estate agent until the criminal case is heard or until he is registered in the Real Estate Agents Registry and a relevant license is issued. The District Court, at the stage of examining the application, ordered its service, considering that it had discretion which it exercised in favour of notifying the application to the accused in order to give him the opportunity to present his position.
The Council suggested that once the conditions laid down in article 34(1) of the Real Estate Agents are met, the District Court had no discretion to order the service of the ex parte application. The indictment charged the accused with acts that constitute persistent offenses of severe criminal liability. The Supreme Court accepted the Council’s suggestion, considering that article 34(1), as a provision of a specialised legislation, does not provide for the exercise of the discretion of the adjudicating Court for the service of the ex parte application to the accused. The Court stressed that the legislative wording clearly reflects the will of the legislator to enable the prosecuting authority (the Council) through the filing of the ex parte application to secure a Court decree (subject to the two conditions set out in the legislative provision), ordering the accused, until the completion of the trial of the criminal case against him, to cease to act or even to exercise the profession of the real estate agent, unless in the meantime he obtains a relevant license and is registered in the Real Estate Agents Registry.
The Supreme Court concluded that for reasons generally related to the public interest, the legislator provided for the exceptional procedure of applying ex parte to the Court. In appropriate cases, the power of the trial Court is exercised, in the absence of the opposing party, to issue decrees, without this being perceived as prejudicial to the substance of the criminal case or to the constitutional presumption of innocence of the accused. The Court noted that similar judicial approaches are observed in other legislations, such as the Streets and Buildings Law, Cap.96 and approved the application of the Real Estate Agents Council and annulled the decree issued by the District Court.