Supreme Court of Cyprus, Civil Appeal No. 341/2006, judgment dated 27/04/2010

Articles 27, 28 and 29, Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224 - Undivided Land by virtue of Article 28 - Decision of the Director of the Lands and Surveys - Impact on other co-owners - Notice to co-owners was partially set aside

We are witnessing practices based on Cap 224 for the last 70 years which now prove to be so wrongfully and unjustifiably applied at the expense of a land owner.

One example, was a situation in the case handled by the founder of our firm, Mrs Sophocleous, based on the procedure laid by Articles 27, 28 and 29 of CAP 224. Article 27 spells the criteria needed for the division of a land owned by owners in undivided shares. Article 28 makes provisions in case where a land is owned in undivided shares by several owners and cannot be divided without breaching any of the provisions contained in Article 27. Article 29 makes provision in the situation where the land can be divided and lays down the procedure of doing so.

The facts of the present case were based on an application made to the Director of the Cyprus Lands and Surveys Office ("the Director") by a lot of members of a family which held ownership in undivided shares over a piece of land (Party A) and a land developer (Party B), also owner of a small undivided share in that same land in an effort to remove Party C, owner of 50% in undivided share of the same land. The application was made on Article 28(1) of CAP 224, and its purpose was to declare that land 'undivided'.

Article 28(1) stipulated that when immovable property cannot be divided without breaching any of the conditions contained in Article 27 of CAP 224, then any co-owner can apply to the Director for the purpose of acquiring certificate that the said property is 'undivided'. The Director issued the desired certificate. There from, it is after the issuance of this certificate that the other co-owners are notified of the Director's decision and this is not necessarily served. The said certificate is accompanied by a notice to the other co-owners informing them of the Director's decision and also notifying them that, unless within 30 days they reach an agreement as to whom the sole owner will be, the property will be sold by auction to the highest bidder. Either by agreement or auction the end result must be that the land will end to one owner.

Contrary to the above and to the purpose of Article 28, the actual notice sent to the co-owner, Party C, went further and stipulated that unless the co-owners reach a decision within 30 days as to who the sole owner would be the Director would have the power to "divide the land in a manner that it does not breach any of the provisions contained in Article 27".

Party C, being the claimant in the case, purported to annul the said notice as being contrary to what the Law stipulated. This argument was never brought before the Cyprus Courts before. Counsel for the claimant, Mrs Sophocleous, argued that the process that was followed all these years by the Director was in contrary to Article 28. A practice which was followed for decades now where ignorant co-owners due to their, for example, absence abroad find themselves one day without their properties and by then it is too late to overrule the Director's decision. The claimant's counsel argued that it was not possible to combine the two processes set by Articles 28 and 29 simultaneously.

The Supreme Court of Cyprus, rejecting the appeal, it set aside that part of the notice of the Director which gave an alternative power to divide the "undivided" land as being in contrary to the whole gist of Article 28, i.e. the land could not be owned by more that one owners. 
That part of the notice, which was set aside by the Supreme Court, was nothing more than a pure mechanism for co-owners to divide their land in a way that served their own interests to develop the land. A careful consideration must be given to Article 28 which has been the subject of misuse and even abuse that very often led to unfair results because it served as means of letting co-owners become the sole owners of a property in order to gain full control and develop that property by simply declaring it unilaterally 'undivided' and afterwards dividing it amongst their partners.
Consequently, the notice that was delivered to the claimant on 20.9.05 contained more than the notice should contain if it meant to follow the wording of Article 28.

Civil Appeal 341/2006, Trident Hotels Ltd -v- the Director of Lands and Surveys, judgment dd 27 April 2010. The full judgment can be found by clicking the following link: find article here>

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