03 Oct Recourse by a Management Committee
Recourse by a Management Committee
by George Coucounis
“A management committee of a jointly owned building has a legitimate interest to file a recourse before the Administrative Court”
A legally established management committee of a jointly owned building is a statutory body and where its powers and obligations are affected by a decision of the administration of either a state, municipal or community authority, it has a legitimate interest to file a recourse before the Administrative Court for the annulment of such decision. The relevant provisions of article 146.2 and 186.1(a) of the Constitution and part IIA, article 38A – 38L of the Immovable Property Law, Cap.224, legitimize the management committee, as responsible for the management of the communal property, to act on behalf of and for the benefit of the owners of the units and to sue and be sued in relation to any matter relating to the communal property or the jointly owned building. Proof of the legal establishment of the management committee is necessary for its legitimization and it can be done with proof of appointment of the first or temporary management committee by the Director of the Land Registry which is submitted together with the recourse. In the event that proof is not attached to the recourse it may be submitted later, with leave of the Court to submit evidence if a preliminary issue is raised that the management committee is not an existing legal person.
A problem exists with regards to the proof of the establishment of a management committee, because the Director of Land Registry, through the relevant Land Offices, does not take action in order to issue the relevant proof of establishment of a temporary management committee. He is of the opinion that the registration of a management committee of a jointly owned building is not required, with the result that the management committees are exposed, unable to prove the legality of their establishment based on the Law and the Regulations. The problem can be resolved by revising or amending the legislation or notifying the Director of the decision of the general meeting of the owners of the jointly owned building that they have established a management committee, so that it is considered the first management committee established in accordance with the Law.
This issue was examined in two decisions issued by the Administrative Court, the most recent being the decision in case No.1356/2018, dated 21.9.2022, where the applicant municipality questioned the legitimacy of the applicant management committee to proceed with the recourse. The Court examined the preliminary issue stating that the applicant did not provide any proof in relation to its capacity as a management committee. The Court referred to its first decision issued in case No. 640/2015, dated 28.8.2018, stating that a management committee of a jointly owned building, when it is established, based on the provisions of article 38KC(2) of the Law, can, indeed as an organization of persons provided for by Law, be a person capable of bringing a recourse. Always, given that it proves that its own powers or obligations are directly and personally affected by the disputed decisions (that is, with a legitimate interest) as defined in article KF of the Law.
As stated by the Court, it clearly follows from the provisions of article 38KC(2), for a body to be considered a management committee for all purposes of the Law, it must have been established in accordance with the provisions of article 38KC(1), based on which there must be, in principle, the appointment of a temporary management committee by the Director (either on the recommendation of the co-owners of the jointly owned building or when exercising his discretion). Therefore, the relevant proof of appointment of the first or temporary management committee by the Director is necessary to prove, initially, the legal establishment of a management committee.
The applicant, as the Court pointed out, did not provide any proof of the first or temporary management committee from the Director, so that it is considered based on article 38KC(2) that a management committee was established by virtue of the Law and the Regulations, but neither did it provide any proof of the first general meeting to establish such a management committee. It also follows that any subsequent “replacement” of the temporary or first with a new, perhaps, composition of the management committee, does not prove the existence of the legally established management committee for all purposes of the Law, if it is not proven, in principle, that such was originally established management committee within the requirements of article 38KC of the Law.
The Court concluded that the applicant has not proved, as was its duty, that it has been constituted and exists as a management committee of the jointly owned building, in accordance with the Law or the Regulations and, therefore, the relevant preliminary objection of the applicant is accepted and the Court dismissed the recourse as inadmissible with costs.