04.07.2022
The lease agreement stipulates that if the property is sold, the lease agreement is terminated.
If an application for an interim order uses a remedy similar to that sought in the suit, it is unlikely that the court will grant it unless the facts are such that it is justified by a balance of convenience. The issuance of a restraining order must not destroy the subject matter of the claim, and the court must ensure that the issues at issue are heard and resolved in its final decision, giving priority to litigation of the claim.
When a tort action is filed after a lease is terminated, a temporary order may be requested to prohibit the former tenant from entering or possessing the property, so the landlord has exclusive possession. The court must weigh all the factors, the terms of the lease, the reason for the termination, and the facts of the urgent remedy being sought.
It is a basic principle of law that what is agreed must be carried out, and for this reason the wording and terms of the lease are very important.
The Supreme Court, by a unanimous decision issued on a civil appeal in this direction dated May 31, overturned the decision of the court of first instance. The plaintiff’s claim was based on the unlawful entry of the defendant’s former tenant into real estate. He claimed exclusive ownership because he sold it, that the defendant was not entitled to it, and that the lease was terminated, plus damages.
Plaintiff also filed for an interim order barring defendant from entering property that was commercial. The lease included a clause that the landlord had the right to sell the property and terminate the lease, in which case the tenant was required to move out.
The Court of First Instance dismissed the application of the landlord who filed the appeal. The Supreme Court held that the cause of action was trespass and breach of contract, and that the statement of claim stated that the property and premises were not subject to the Rent Control Act and that the tenant was not legal because in 1999 and In 2000, the premises were used by the landlord.
Thus, the conclusion of the trial court that the procedure that preceded it was not suitable for deciding the question of jurisdiction was incorrect, especially in view of the principle that jurisdiction is determined in a debate that determines the disputed facts. In addition, the Supreme Court held that the trial court did not conclude that it, and not the Rent Control Court , had jurisdiction based on the evidence presented to it.
In addition, he did not take into account that immediately before the start of the trial, the lawyers of the litigants stated, and this was confirmed as a fact, that the contracts for the sale of property were signed, duly sealed and one of them was deposited with the land registry. It was pointed out that this fact had potential significance and the court did not take it into account.
The Supreme Court concluded that the trial court had not exercised its discretion in accordance with case law. The fact that the issuance of the orders was similar to the claims in the suit should not, under the circumstances, mean anything more than the orders issued to the plaintiff as an urgent remedy. The rulings, as an interim remedy, could accordingly be adopted in a final judgment. Thus, the Supreme Court held that the necessary conditions for a restraining order had been met and the balance of convenience was in favor of the plaintiff, and ruled for the protection of the landlord’s rights pending trial of the claim.
George Coucunis is a lawyer practicing in Larnaca and founder of George Coucounis LLC, Advocates & Legal Consultants
