Order for the recovery of possession of property

If an issue arises during execution, the registrar applies to the court for directions

The order for the eviction and surrender of possession of a property, like any other order requiring the execution of a certain act, must specify the time within which it must be executed.

Failure to specify a time for compliance does not affect the validity of the order, but makes it ineffective. In this case, it is necessary to determine the time in accordance with the procedure provided by the rules and thereafter, direct service of the order must be made with the appropriate endorsement to the person it’s addressed to.

If the above procedure has been followed, the person in whose favour the order was issued is entitled to apply to the court to obtain a writ of possession of the property. The court will issue the writ once satisfied that the eviction order with the appropriate endorsement was served correctly. If the service is not made within the specified time, it is necessary to obtain a supplementary order extending the time.

When the court issues the writ of possession, it is passed to a bailiff of the court for execution. The bailiff is authorised to seek recovery of possession of the property from the respondent, giving them reasonable notice to vacate and if they do not comply, the bailiff has the right to expel him. If any issue arises, such as a different person being in possession of the property, then the court registrar submits an application to the court for directions supported by an affidavit from the bailiff.

Such an issue was dealt with by the rent control court in a judgment issued on October 11. The court, dealing with the application of the registrar, ordered its service to the owner, the statutory tenant and to his father, who was in actual possession of the property, as an interested party and heard all of them.

The court held that the proceedings did not amount to the transfer of any new rights to any of the parties. Given that there was no order annulling or suspending the order, the whole issue depended only on the manner of its execution. Regarding the allegations made by the tenant and the interested party, the court emphasised that they did not change the reality created by the final judgment and the interested party did not show that he had a legal right to be in possession of the property.

The crucial issue in this case was that only a few months before, a judgment by consent was issued with free will and in the presence of both the tenant and his lawyer, without them saying anything to dispute his status as a statutory tenant. This fact prevents the tenant from alleging afterwards that he hadn’t understood the effectiveness and implications of the order for his eviction. Judicial decisions have validity and consequences. The representations a litigant makes through their lawyer to an opponent during a trial, as the court stated, may even lead to the creation of a promissory estoppel against him.

The court added that nothing indicated that the execution of the writ of possession would result in unjustified suppression or serve other purposes beyond proper satisfaction of the judgment. On the contrary, it is non-enforcement of judicial judgments that undermines their effectiveness, which is a matter of the highest public interest, crucial for the administration of justice. It affects the validity and effectiveness of court proceedings, an issue that becomes more intense in cases like this, where possession continues to be held without payment. The court, taking into account the objective difficulties of the case, issued an order with specific directions to the bailiff to execute the writ of possession, giving reasonable time to the tenant and interested party to find another house.

George Coucounis is a lawyer practicing in Larnaca and is the founder of George Coucounis LLC, Advocates & Legal Consultants, [email protected]

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