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Statutory tenancy is not transferable
By George Coucounis

The statutory tenancy is created by the law, refers to certain tenancies, premises and tenants, it is not transferable and cannot be inherited. It expires subject to the provisions of the Rent Control Law, which when referring to the term “tenant” includes every physical or legal person who is a tenant of premises, the surviving spouse or child of the tenant who resided or had their main business in the demised premises together with the tenant at the time of his death. Possession of the premises after the death of the tenant by his spouse or child, who are not entitled to it as aforesaid, does any create any right to them and their presence in the premises is considered as trespass. The owner in such a case has the right to re-gain possession of the premises and can file an action for the recovery of possession, as well as a claim for damages equal to the loss of the rental value of the premises.

Trespass is actionable before the District Court and the Rent Control Court has no jurisdiction, unless the claim is against the owner. The law does not give jurisdiction to the Rent Control Court to adjudicate damages for trespass, since in order for any claim to be entertained before the said Court, there must be statutory tenancy and the claim to refer to the tenancy relation between the tenant and the landlord. The statutory tenancy presupposes lawful possession and negates trespass on behalf of the tenant. Therefore, the jurisdiction of the Rent Control Court will be examined and if it is established according to the pleadings or the evidence that the issue exclusively refers to trespass, the Court will transfer the case before the District Court to be tried thereby. Moreover, since it has no jurisdiction, it will not adjudicate any costs and will not dismiss the case.

There are cases where the statutory tenant passes away and none of the members of his family worked with him in the demises premises at the time of his death. In such a case, possession of the premises by any of his family members with an aim to acquire rights and the status of the statutory tenant is considered trespass and cannot succeed. Even acceptance by the owner of rents does not witness the creation of a new tenancy. The owner has the right either to treat the tenancy as terminated or to claim the creation of a new tenancy with a new rent in accordance with the market rent. If there is no agreement, the owner can claim his rights as aforesaid before the District Court for an order and damages, since possession of the premises by such members of the family is illegal and constitutes trespass.

Likewise when there is a claim against a statutory tenant for trespassing to the communal area of a building, such a claim cannot be entertained by the Rent Control Court but by the District Court. There are many cases where license is given to a tenant to use a part of the communal area as storage, such licence does not create a grant of an interest in land and therefore, it can be revoked. A license is only a permission and can be gratuitous, a bare license or a contractual license. The revocability of a license depends on its category, but a bare license does not amount to a contract and can be revoked at any time by the licensor without giving the licensee the right to claim damages. Even though a license is given to a statutory tenant, when revoked, the status of the tenant does not protect him, he commits trespass and the Rent Control Court has no jurisdiction to try the case. The essence of the action based on trespass to land or nuisance is not connected in any way with the statutory tenancy and therefore, a person who does not have the status of a statutory tenant cannot claim protection by the Rent Control Law.

George Coucounis is a lawyer and leading partner of George Coucounis LLC, a legal firm based in Larnaca -Cyprus
E-mail: coucounis.law@cytanet.com.cy  |  www.coucounislaw.com  | tel.:- 24818288.
 
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