18.04.2022
Whoever benefits from the deal must also bear the burden.
The basic principle of law is that a person who decides to accept the right associated with the fulfillment of an obligation does not have the right to benefit, but is released from the obligation. One is conditioned by the other, and the assertion of a right does not allow a person to claim that he is not subject to an obligation.
This phenomenon can be observed in the case of a town planning permit or a building permit, when the owner does not fulfill the condition imposed on him when the permit was issued. If the owner accepts the permission and continues development, he approves it and benefits. Thus, they cannot subsequently challenge this condition. The terms of the permission are inalienable and make it indivisible.
For example, the owner may apply to the competent authority for a building permit and agree in writing to an imposed condition, such as making part of the property available for registration as a public road. While receiving benefits, he may not receive a final approval certificate to renew his title deed and register the road. However, retaining all property on a title deed does not give the owner the right to sue the authorities for trespassing. Such a claim has no chance of success, since the principle of right and duty hinders the owner.
The decision of the Famagusta District Court of 2 February refers to the above principle. The predecessor of the property owner accepted the issuance of a permit to build a fence, which at the same time imposed the condition of making part of the property available as a public road. He built a fence and agreed in writing to comply with the condition, but the new owner sued the authorities who built the road, claiming they had made an illegal entry. He also applied for removal of the illegal intrusion plus damages. The court decided that the owner could not complain, since there was no illegal entry, and dismissed the claim.
The court emphasized that the owner failed to comply with the conditions of the building permit and retained the fence without a final approval act, therefore illegally, in violation of section 20(1)(c) of the Streets and Buildings Act, ch. 96. The owner in these circumstances must comply with the permit conditions and obtain a certificate of final approval in order for a portion of the property to be registered as a public road. Part of the property, with which his predecessor agreed to part, does not belong to him, but to the authorities.
The court referred to a similar decision, with which it agreed, in which it was decided that the plaintiff had availed itself of the provisions of the permit. He went ahead and erected all the buildings stipulated in the permit, but did not comply with the condition imposed on the transfer of ownership of the property as a road.
According to the court, the plaintiff had three options: not to apply the permit, go to an administrative court and challenge the legality of the condition, or implement the permit. The plaintiff decided to implement the permit and was therefore unable to apply for an end to the alleged intrusion, as well as for damages. Giving part of the property to the public is part of the permit. He did not have the right to choose the part of the permission that suited him, waive the obligation placed on him, and then ask the court for various remedies based on his inaction. This would be contrary to the basic principle of law, according to which no one can take advantage of his inaction.
George Coucunis is a lawyer practicing in Larnaca and founder of George Coucounis LLC, Advocates & Legal Consultants
