29 Apr Landlord’s remedy for non-payment of rents
Landlord’s remedy for non-payment of rents
by George Coucounis
THE new provision added to the Rent Control Law and in particular in case the landlord claims the recovery of possession of his property when the tenant does not pay the legally due rents, gives the tenant the right to file a reply to the eviction application, provided he proves that the rents have been paid. In this case, the registrar of the court accepts or rejects the filing of the tenant’s reply and his decision is submitted to the court within three working days for final approval or rejection. The court’s decision is not subject to an appeal nor can it be the subject of an application for the issue of a certiorari order, even if the law has been misinterpreted by the court. The landlord can use the remedy provided by the Civil Procedure Rules, either by O.27 R.2 or O.48 R.11 and apply to strike out or to set aside the reply of the tenant due to non-compliance with article 11(1)(a)(ii) of the Rent Control Law 23/83.
The tenant may file a reply to the landlord’s application to recover possession of the premises due to non-payment of legally due rents, which may be accepted for filing by the registrar of the court if accompanied either by a receipt issued by the accounting department of the court that the amount stated in the application as rents in arrear has been deposited in court at the date of the filing of the reply, or by a receipt issued by the landlord or his representative or by a receipt that the amount was deposited in a banking institution for the benefit of the landlord or his representative. The relevant provision was added to limit the abuse of process by tenants, who owe rents in arrear and deliberately do not pay, taking advantage of the delay in the hearing of the cases before the court.
An issue was brought before the Supreme Court in an application for the issue of a certiorari order in relation to a decision of the Rent Control Court under article 11(1)(a)(ii). In particular, the court accepted the filing of the tenant’s reply to the landlord’s application for his eviction due to non-payment of rents, without the reply being accompanied by proof of payment of the whole amount stated in the application as the amount of the rents in arrear due. The landlord claimed that the court had wrongly accepted the filing of the reply, as it became clear that the tenant had paid only part and not the whole amount owed. In fact, in his reply, the tenant did not make any allegation for repayment of the arrears. The reply was accompanied only by proof of deposit in a banking institution of part of the amount due, contrary to the above article.
The Supreme Court, which heard the landlord’s application, rejected it in its decision dated 26.4.2021, stating that the landlord referred to the rental conditions, as well as the failure of the tenant to pay the due rents. He also noted that the contested decision of the court was not submitted, since, according to the search of the file, there is no written text of it, but it results from the file where the reply was filed. The landlord pointed out to the Court the fact that he had no right of appeal and that the only remedy he was offered was the filing of an application for a certiorari order which allows the exercise of control by a higher court to a lower court. The Court, referring to case law, emphasized that a certiorari is mainly issued to secure that the lower court operates within the limits of its jurisdiction and in accordance with the fundamental rules of Law. In relation to jurisdiction, the criterion is whether the order under review was within the jurisdiction of the court that issued it. The absence of jurisdiction must be evident from the minutes of the proceedings and in relation to the illegality, it must be obvious.
The Court was not convinced that the lower court acted manifestly illegally. Even if the court misinterpreted the relevant article, this cannot activate the privileged power of the Supreme Court to grant the relevant leave to file an application for a certiorari order. It pointed out that the Civil Procedure Rules, either through O.27 R.2 or O.48 R.11, are available to the landlord in order to apply to strike out or set aside the reply of the tenant or for any other remedy and dismissed the application.