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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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Δεν έχει εντοπιστεί νομοθεσία ή απόφαση ή δικονομικός θεσμός στον οποίο να κάνει αναφορά η απόφαση αυτή
Μεταγενέστερη νομολογία η οποία κάνει αναφορά στην απόφαση αυτή:
Δεν έχει εντοπιστεί απόφαση η οποία να κάνει αναφορά στην απόφαση αυτή
(V19) 1 CLR 152
1952 December 1
December 5, 1952
[HALLINAN, C.J., AND GRIFFITH WILLIAMS, J.]
THALIA MICHAELIDES OF LIMASSOL,
Appellant,
v.
LEONIDAS STYLIANOU,
Respondent.
(Civil Appeal No. 3948.)
Implied contractual tenancy—Enactment of Increase of Rent Restriction Law (Cap. 108) does not terminate suck tenancy—Notice to increase rent not a notice to quit—Possession for breach of contractual tenancy not pleaded.
A claim for possession by landlord on the ground that the tenant was a statutory tenant and was in arrears of rent. The contractual tenancy had expired in 1932 but the tenant had continued in possession and the landlord had accepted rent. The Increase of Rent Restriction Law (Cap. 108) was enacted in 1942. In 1946 the Landlord gave the tenant notice to increase the rent.
Held : (1) The implied contractual tenancy which arose in 1932 was not converted into a statutory tenancy by the enactment in 1942 of the Increase of Rent Restriction Law (Cap. 108), but continued and had never been terminated.
(2) The oral notice to increase the rent in 1946 did not operate as a notice to quit as it might do in English Law : Aston v. Smith 93 L.J. 773 not applicable in Cyprus.
(3) Since the landlord had sued to determine a statutory tenancy, he could not recover possession for non-payment of rent under the contractual tenancy.
Appeal dismissed.
Appeal by the defendant from the judgment of the District Court of Limassol (in Action No. 1436/50) in favour of the plaintiff.
J. Eliades for the appellant.
Chr. Demetriades for the respondent.
The facts of this case are set out in the judgment of the Court which was delivered by :
HALLTNAN, C.J.: In this case the appellant leased a shop to the respondent in 1931 and that tenancy expired in 1932 but the respondent continued on in possession and paid a monthly rent in respect of the premises. In 1946 the rent was increased and in 1947 the appellant, when possession was not given, brought an action. That action was dismissed on the ground that the notice to quit was bad. The appellant, in the present case, has brought another action in winch she alleged that this was a statutory tenancy and that the respondent, being in arrears of rent, she (the appellant) was entitled to possession under the Increase of Bent Restriction Law (Chapter 108). This action was dismissed and against that dismissal the appellant has appealed.
The first submission on behalf of the appellant is that where an express contractual tenancy expires and the tenant continues on in possession, and is paying the rent, the fact that the Increase of Rent Restriction Law has been enacted terminates the contractual tenancy and turns it into a statutory one. Counsel for the appellant has relied on Felce v. Hillman, 1923, 92 Law Journal, p. 972 and Morrison v. Jacobs, 1945, 2 A.E.R., p. 430. It is clear to this Court after perusing these reported eases, that they only apply where at the date on which the express contractual tenancy expires there is in existence legislation similar to our Increase of Rent Restriction Law in force. An implied contractual tenancy can only arise if, from the fact that the tenant pays rent to the landlord, the inference can be drawn that the parties intended to allow the tenancy to continue as a period of tenancy such as from month to month or year to year. The grounds for the decision in the cases, relied on are that when the contractual tenancy expired an implied contractual tenancy cannot be in force because there is at that moment in existence a law which prevents the landlord from regaining possession; therefore, his acceptance of rent, willy nilly, does not give rise to any inference that lie intends the contractual tenancy to continue. In the present case when the contractual tenancy expired in 1932 there was no law similar to the Increase of Rent Restriction Law, which was not enacted until October, 1942. Therefore, in 1932 an implied contractual tenancy arose which was a tenancy from month to month and in our opinion this was not terminated by the passing or enactment of the Increase of Rent Restriction Law Chapter 108).
We do not consider it necessary to discuss all the points taken on this appeal but it is, I think, sufficient to mention only two other submissions by counsel for the appellant. The first is that the notice to increase the rent which was given orally by the appellant in 1946 operated also as a notice to quit and the counsel for the appellant relied on the case of Aston v. Smith, 1924, 93 Law Journal, p. 733. That line of authority depends on the Rent Restriction Notice of Increase Act, 1923, section 1(1), which expressly provides that a notice to increase the rent given in the form prescribed by the statute shall have the dual effect of being a notice to increase the rent and also a notice to quit. There is nothing in our legislation corresponding to this provision and consequently the decision in Aston v. Smith does not apply here. It has been suggested by counsel for the appellant that the notice to increase rent in 1946 was given in such a way as to be considered as a notice to quit. The appellant states in her evidence that she said to the respondent "You must pay me that increase or leave". The trial Judge in our opinion rightly considered that that was not a notice to quit and the subsequent action of the appellant in serving notice to quit in 1947 on the respondent showed that she did not consider that a notice to increase rent in 1946 was intended to terminate the contractual tenancy. The other point relied by counsel for the appellant and to which we wish to refer is the submission that even if the Court holds that the contractual tenancy has not, been terminated the appellant is entitled to an order for possession on the ground that under clause 5 of the original agreement between the parties it was provided "Delay in the regular payment of the rent as fixed above renders the right to the owner to declare the present contract as cancelled;" A short answer to this submission is that it was never pleaded as a cause of action. In the endorsement of claim the appellant claimed possession from the defendant as a statutory tenant who was in arrears of rent and the whole case was fought on that basis. At the very end when replying to the address of the counsel for the respondent counsel for the appellant asked to amend the pleadings but subsequently withdrew his application. We agree with the learned trial Judge that on the claim and pleadings as they stand the appellant cannot recover judgment on the ground that she is the landlord under a contractual tenancy and that she can enforce her right under clause 5 of the agreement between the parties.
For these reasons we consider that this appeal must he dismissed.
Wo accept the submission of counsel for the respondent that the Court below, in view of the fact that the amount of rent due had been paid into the Court, should have awarded costs against the appellant and we, therefore, order that the respondent is entitled to his costs both here and the Court below.