By George Coucounis
Avoiding disputes related to land is preferable than resolving them through the Court, since such disputes are emotional and are governed by the claim of ownership. Setting a boundary in a piece of land, such as a plot or a field in the presence of the neighbour before constructing a house or a surrounding wall is a secure solution to avoid any friction which may be caused even by a bona fide mistake. Trespass cannot create ownership rights, because according to article 4 of the Law, Cap.224, no estate, interest, right, privilege, liberty, easement or any other advantage whatsoever in, on or over any immovable property shall subsist or shall be created, acquired or transferred except under the provisions of this Law. Therefore, only in exceptional cases, where it is unjust for the owner to be benefited by a situation which was acceptable both by him and the other party concerned, the proprietary estoppel is introduced in order to maintain the said situation. The Court has discretion in the case of deprivation of property to adjudicate damages to the owner to compensate him for his loss instead of issuing an order for the demolition and removal of the trespass.
In a recent judgment, the Supreme Court analysed how the issue is addressed by the Courts; the case was about a partition wall, a part of which was constructed in the neighbour’s plot. The wall was constructed by the previous owner-developing company in 1999 when they built a two-storey house, which they sold thereafter. The purchaser was not aware of the trespass of 9 m², which was ascertained after a local enquiry was conducted by the Land Registry to resolve a boundary dispute. The issue was brought before the District Court where the owner of the house alleged that he acted in good faith and that he had no knowledge of the insignificant trespass, which appeared afterwards. An order for the demolition of the wall would have caused him disproportional damages compared to the loss of the neighbour who could be compensated financially, something that the owner of the house was willing to do. The Court, given the fact that the trespass was admitted, proceeded and issued an order for the demolition of the part of the wall built in the plot of the neighbour.
The Supreme Court did not agree with the District Court’s decision that the latter had no jurisdiction to adjudicate damages instead of a demolition order and held that the issue of the order was a matter of exercising its discretion and not the only remedy available to the neighbour. The Court referred to the Clerk & Lindsell on Torts and stated the following principles which govern the issue:- (a) an injunction must be issued rarely and only when the plaintiff shows that there is a great possibility for a serious damage to be caused to him in the future if the injunction is not issued, (b) when the damage to be caused due to the refusal to issue the injunction cannot be remedied through the adjudication of damages, and (c) the injunction will be refused where the compliance of the defendant with it will be illegal. It also added the following criteria mentioned in the said book, (a) if the damage of the plaintiff is small, (b) is such that can be monetarily ascertained and the plaintiff will be adequately compensated, and (c) if the case is such that the issue of the order would be oppressive to the defendant, the Court can adjudicate damages instead of the order, taking into account the behaviour of the litigants, especially the defendant. The Court additionally stated that it was common ground that the extent and the value of the trespass in the particular case was small, 9 m² valued €2000, the total cost to comply with the order would be €13.210, the purchaser purchased the property in good faith and without having any knowledge of the trespass and that during the construction of the wall by the previous owner, there was no protest by the neighbour. It concluded, however, that although the purchaser will suffer greater financial cost to demolish the wall, it does not find that the amount is such in order to deprive the neighbour of the part of his property covered by the wall. Therefore, it did not find the issue of the order oppressive for the purchaser and his appeal was dismissed.
George Coucounis is a lawyer and leading partner of George Coucounis LLC, a legal firm based in Larnaca -Cyprus
E-mail: firstname.lastname@example.org | www.coucounislaw.com | tel.:- 24818288.