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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(V18) 1 CLR 117
1948 February 28
[JACKSON, C.J., AND HALID, J.]
PANAYIOTIS GREGORIADES AND ANOTHER,
Appellants,
V.
GEORGE J. DEMADES,
Respondent.
(Civil Appeal No. 3761.)
Rent Restriction-Increase of Rent (Restriction) Law, 1942-Permissive occupation-Payment of rent.
The respondent was the owner of a house at Limassol which he bought from the former owner, N.P. The trial Court found that at the time of the transfer the appellants, who were husband and wife, were occupying the house by permission of N.P., who was the uncle of the second appellant, the wife, and without payment of rent. It was argued for the appellants that they were nevertheless tenants under the Increase of Rent (Restriction) Law, 1942, and that the respondent, the new owner, could not evict them.
Held, that, in view of the declared purpose of the Increase of Rent (Restriction) Law, 1942, it would not be reasonable to apply it to purely permissive occupations in respect of which no rent was paid.
Judgment of the District Court affirmed.
Appeal by the defendants from the judgment of the District Court of Limassol (Action No. 214/43) in favour of the plaintiff.
Z. Rossides with J. Solomonides for the appellants.
Sir Panayotis Cacoyannis for the respondent.
The facts of the case are fully set out in the judgment of the Court which was delivered by:
JACKSON, C.J.: This is an appeal by the defendants in an action in the District Court of Limassol.
The plaintiff is the owner of a house at Limassol which he bought from the former owner, the Exarch Nicodimos Papadopoulos, and which was transferred in the plaintiff's name on the 21st January, 1943. At the time of the transfer the defendants, who are husband and wife, were living in the house by permission of the Exarch who is the uncle of the second defendant, the wife. On the day on which the house was transferred to the plaintiff the latter gave notice to the defendants to quit.
As the defendants refused to vacate the house when requested to do so by the plaintiff, he brought this action and made the following claim:-
(1) That the defendants should vacate the house and deliver it to him.
(2) That the defendants should be restrained from interfering with his house.
(3) That the defendants should pay 2s. 3p. a day from 21st January, 1943, until the day when the house should be restored to the plaintiff, by way of compensation for their possession or use of the house.
The defendants denied that they were living in the house by permission of the former owner, and maintained that they occupied it on payment of a rent of £12 per annum.
It appears from the evidence that since their marriage in 1937 the defendants have in fact lived in the house.
In 1938 the defendants brought an action against the former owner, the Exarch, claiming the house as dowry. That action was dismissed with £16 costs. Not only did the Exarch decline to demand the payment of the costs awarded to him, but he allowed the defendants, his niece and her husband, to remain in occupation of the house without payment of rent.
The District Court which consisted of the President and Themistos, D.J., differed in their finding. The President believed the evidence of the first defendant, the husband, who stated that he had agreed with the Exarch to pay £1 rent per month. The President held that the defendants were statutory tenants and were consequently entitled to the protection of the Rent Restriction Law. Themistos, D.J., disbelieved the evidence of the first defendant and held that they had failed to prove an agreement of lease with the former owner.
On this finding judgment was given in favour of the plaintiff as the Court decided that the onus of proof lay on the defendants to establish their right to protection as tenants.
On behalf of the appellants it was contended before us that the finding of Themistos, D.J., that there was no agreement for rent between defendants and the Exarch was unreasonable in view of the fact that no evidence was adduced by the plaintiff, and that the evidence of the first defendant was uncontradicted.
It is true that the only direct evidence on this point was that of the first defendant. It was a matter peculiarly within his knowledge and that of the Exarch who was not called. In disbelieving the first defendant the District Judge must have had regard to the inconsistencies in his evidence. These were palpable. The relationship between the two defendants and the Exarch had also to be taken into account. No rent had been paid since 1937 and when the defendants had brought an action against the Exarch in 1938, claiming the house as dowry, the Exarch, as already stated, had not claimed his costs but had allowed the defendants to remain in occupation without payment of rent. Nor was there any agreement of lease. All these facts appear to us to support very fully the conclusion of fact reached by the District Judge that the defendants were occupying the house by permission of the Exarch and rent free. We accept that conclusion.
There remains another question. It was argued for the appellants that even if they did occupy the house by permission of the Exarch and without payment of rent, they are nevertheless tenants under the Increase of Rent (Restriction) Law, 1942, and that the plaintiff, the new owner, cannot evict them.
Their counsel argued that in order to determine whether the occupier of a house is a tenant entitled to the protection of the Law or a licensee, who is not protected, the test is not the payment of rent but whether the occupier has the exclusive possession of the premises or only a qualified protection such as a lodger has. English cases were cited to show that persons who had occupied premises by permission only and without payment of rent had nevertheless been held to be tenants. But these cases had nothing to do with the special emergency laws protecting tenants from eviction. The occupiers in those cases were held to be tenants for very different purposes.
No authority, either English or local, was cited to us which supported the proposition that to entitle an occupier to the special protection of the Increase of Rent (Restriction) Law, the payment of rent is unnecessary. The full title of that Law is "A Law to restrict the increase of rent and to provide for matters incidental thereto." In view of the declared purpose of that Law, would it be reasonable to apply it to purely permissive occupations in respect of which no rent is paid ? Nothing in the Law itself and no argument put before us here gives us any reason to think so.
This appeal must therefore be dismissed with costs.