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Compensation for compulsory acquisition
By George Coucounis

Checking the time limits set by the law should be a primary concern of everyone who intends to take legal or other proceedings against a decision, notice, notification or other act of the administration or the state authorities. Taking such proceedings within the time limit set determines whether they are admissible or delinquent. A relevant example is that for any order, notice or decision of the Director of the Land Registry for the forced sale of an immovable property, the person affected has to file an appeal before the Court within 30 days from the day he was notified of such decision. Another example is where an owner receives the compensation offered for the compulsory acquisition of his property, reserving his right for the assessment of fair compensation by the appropriate Court. In this case, the owner must apply to the Court within 75 days the latest from the day he received the compensation offer, since after the deadline it will be deemed that an agreement has been reached regarding the amount of the compensation paid.

Any omission or mistake by the owner or his lawyer when checking the deadlines and taking the relevant legal steps within the time limit set in the law in the event of compulsory acquisition, even though it may cause injustice to the owner, does not justify the extension of the time limit and such legal remedy becomes delinquent and subject to dismissal. The issue was examined recently by the District Court of Nicosia, where the owner of a piece of land received the compensation offered for the compulsory acquisition of part of her property with reservation of rights. In particular, the acquiring authority offered her £25.000 and the owner did not accept it, since it did not correspond to the compensation she was entitled to according to the law, since the damage caused was assessed by the expert valuer she appointed to be £75.000. However, the owner received the compensation offered with reservation of rights in accordance with article 8(2) of Law 15/1962 and while she cashed the relevant cheque on 3.2.2004, she filed an appeal before the Court on 3.8.2005, after the time limit of 75 days set in the law. The Republic in its defense raised an issue that the appeal was delinquent and could not be tried. On the other hand, the owner claimed that the relevant time limit is contrary to articles 23, 28 and 30 of the Constitution, as well as to the corresponding articles of the 1st and 12th Protocol of the European Convention for the Protection of Human Rights. She alleged that the time limit is very short and insufficient for disputes of civil nature preventing her from claiming reasonable and fair compensation and access to justice for determination of her rights and that the legislator had no authority to impose as a presumption the fact that she received the compensation, since she did so with full reservation of rights.

The Court examining the issue of unconstitutionality, in view of the presumption of constitutionality of the laws, held that the person claiming unconstitutionality of an article is burdened to prove it beyond doubt and in this case, the owner failed to do so. The same applied for the corresponding provisions of the European Convention for the Protection of Human Rights. In the said case, the facts show that the lapse of the time limit was due to a mistake made by the lawyer, something which may cause injustice to the owner, but it does not justify or lead to the outcome that the legal provision setting the time limit is unconstitutional. The time limit is not short and therefore it cannot be considered as prohibiting the owner from exercising her constitutional rights. Furthermore, the fact that the acquiring authority has accepted that the value of the land was higher than the compensation offered cannot lead to the acceptance of the owner’s position that the said legal provision was unconstitutional. Therefore, the owner’s application was found delinquent and was dismissed with costs and an order was issued for the registration of the property to the Republic.

By George Coucounis

Checking the time limits set by the law should be a primary concern of everyone who intends to take legal or other proceedings against a decision, notice, notification or other act of the administration or the state authorities. Taking such proceedings within the time limit set determines whether they are admissible or delinquent. A relevant example is that for any order, notice or decision of the Director of the Land Registry for the forced sale of an immovable property, the person affected has to file an appeal before the Court within 30 days from the day he was notified of such decision. Another example is where an owner receives the compensation offered for the compulsory acquisition of his property, reserving his right for the assessment of fair compensation by the appropriate Court. In this case, the owner must apply to the Court within 75 days the latest from the day he received the compensation offer, since after the deadline it will be deemed that an agreement has been reached regarding the amount of the compensation paid.

Any omission or mistake by the owner or his lawyer when checking the deadlines and taking the relevant legal steps within the time limit set in the law in the event of compulsory acquisition, even though it may cause injustice to the owner, does not justify the extension of the time limit and such legal remedy becomes delinquent and subject to dismissal. The issue was examined recently by the District Court of Nicosia, where the owner of a piece of land received the compensation offered for the compulsory acquisition of part of her property with reservation of rights. In particular, the acquiring authority offered her £25.000 and the owner did not accept it, since it did not correspond to the compensation she was entitled to according to the law, since the damage caused was assessed by the expert valuer she appointed to be £75.000. However, the owner received the compensation offered with reservation of rights in accordance with article 8(2) of Law 15/1962 and while she cashed the relevant cheque on 3.2.2004, she filed an appeal before the Court on 3.8.2005, after the time limit of 75 days set in the law. The Republic in its defense raised an issue that the appeal was delinquent and could not be tried. On the other hand, the owner claimed that the relevant time limit is contrary to articles 23, 28 and 30 of the Constitution, as well as to the corresponding articles of the 1st and 12th Protocol of the European Convention for the Protection of Human Rights. She alleged that the time limit is very short and insufficient for disputes of civil nature preventing her from claiming reasonable and fair compensation and access to justice for determination of her rights and that the legislator had no authority to impose as a presumption the fact that she received the compensation, since she did so with full reservation of rights.

The Court examining the issue of unconstitutionality, in view of the presumption of constitutionality of the laws, held that the person claiming unconstitutionality of an article is burdened to prove it beyond doubt and in this case, the owner failed to do so. The same applied for the corresponding provisions of the European Convention for the Protection of Human Rights. In the said case, the facts show that the lapse of the time limit was due to a mistake made by the lawyer, something which may cause injustice to the owner, but it does not justify or lead to the outcome that the legal provision setting the time limit is unconstitutional. The time limit is not short and therefore it cannot be considered as prohibiting the owner from exercising her constitutional rights. Furthermore, the fact that the acquiring authority has accepted that the value of the land was higher than the compensation offered cannot lead to the acceptance of the owner’s position that the said legal provision was unconstitutional. Therefore, the owner’s application was found delinquent and was dismissed with costs and an order was issued for the registration of the property to the Republic.

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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