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Transfer of property pending a recourse
By George Coucounis

A recourse against an act or a decision of an administrative body by a citizen affected requires him to have a legitimate interest not only at the time of such an act or decision, but also at the time the recourse is filed. Moreover, the applicant must have the same legitimate interest during the time the recourse will be decided. If for any reason the applicant loses his interest, this will be a valid reason for his recourse to be dismissed. Such an issue can be raised when an owner of a property decides to sell or donate it after having filed a recourse before the Supreme Court against an administrative act, such as a decision of a local authority, the Town Planning and Housing Department or in case of compulsory acquisition. The alienation of the immovable property before the recourse is completed terminates the relation between the owner and the property causing the loss of his legitimate interest and consequently, his recourse will be dismissed. While the recourse is pending, the property must remain registered in the name of the applicant and should not be transferred.

The issue has been examined and decided by the Supreme Court in various instances, including a judgment issued recently, whereby the recourse was dismissed due to the transfer of the property to another person without the Court proceeding further to examine the reasons of the recourse. The leading case was about an applicant whose property was affected by street planning and appealed before the Supreme Court. While the recourse was pending, the applicant donated the property affected to her children, something which came to the knowledge of the local authority. This was mentioned to the Court and an objection was submitted that the applicant lost her legitimate interest. The Court examined the objection and stated that for a recourse to be legally exercised, the applicant must have an immediate, existing and present legitimate interest. Its existence creates the jurisdiction of the Court, while if it does not exist, the Court is deprived of its power to examine the recourse. The applicant has the burden to prove that there is legitimate interest and that he has suffered damage due to the administrative act or decision. Thus, there must be an existing relation between the applicant and the sub judice decision and the interest is not equivalent to a right.

The Court decided that the legitimate interest implies the existence of a special relation between the applicant and the administrative act, which must be ascertained at the time of the act, of the filing of the recourse and during its trial. If the applicant loses his capacity as an owner, he also loses his legitimate interest and there is no point in examining the recourse. The interest of the owner derives from his ownership in the property affected and any transfer terminates the relation between him and his property. The fact that the property is transferred to a relative does not change the consequences, since the legitimate interest is not transferable. As long as the property is transferred, the legitimate interest ceases to exist. Even the transfer of the property to a family company where the owner is a shareholder changes the status of the applicant and he loses his interest. He is no longer an owner and the other person, even a relative or a family company, is considered another owner who acquired the property later and has no right to the recourse.

The time for the recourse is limited to 75 days from the time the administrative act or decision was communicated to the affected person. Therefore, the change of ownership taking place later, after the time limit passes, does not qualify the new owner to carry on with the recourse or to file a new one.

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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