Question for Elko (Ismet) in North Cyprus

greenman


Joined: 16/02/2008
Posts: 526

Message Posted:
05/10/2010 12:49

I could have emailed directly, but thought others may be in a similar position and could also offer or benefit from any advice given.

I have a Court Order for my builder to complete my house and transfer the deeds, with neither action being reliant upon the other and there is no completion date.

My question is can I work on the basis that the two actions should be completed at the same time i.e. at the time of transfer the building work will have been done?

If, after a reasonable time of inactivity (say 6 months after the Order) can I set a date for transfer and invite the builder to the meeting stipulating that transfer and completion are simultaneous?

What can be done if the builder fails to respond?

Your advice would be much appreciated.

greenman


Joined: 16/02/2008
Posts: 526

Message Posted:
05/10/2010 17:15

Any thoughts on this?

elko2



Joined: 24/07/2007
Posts: 4400

Message Posted:
05/10/2010 19:42

Sorry Greenman for late reply. I was at the get together at Guidos today and just got home.

My comment to your question is this (hold tight): I think your advocate is taking you for a ride or you misunderstood him/her. Have you got a copy of the court order in your posession? May I see it please.



The reasons for my suspicion is this:

1. How did your advocte get over the Specific Performance Law i.e. how did he get an order for transfer of title deeds?

2. Any court order should be specific with strict timetable and also state what will happen if not complied with.

ismet

greenman


Joined: 16/02/2008
Posts: 526

Message Posted:
05/10/2010 21:21

My turn to say sorry. I'll copy the Court Order to you. Thank you.

greenman


Joined: 16/02/2008
Posts: 526

Message Posted:
05/10/2010 22:09

My turn to say sorry. I'll copy the Court Order to you. Thank you.

Groucho



Joined: 26/04/2008
Posts: 7993

Message Posted:
05/10/2010 22:44

Elko,



This is not the first time I've heard of a judgement like this in the TRNC. Although the Specific Performance Law would seem a catch-all get out for builders... once the buyer has taken possession of their property and all monies due as per contract have been paid by the buyer in lieu of property and deeds then it seems natural justice can be substituted for and supersede the Specific Performance Law. i.e. it's too late for the builder to invoke the provisions of the Specific Performance Law, hand back the buyer's money with compensation and sell the property to someone else.



If the contract specifically requires the deeds to part of the whole transaction in consideration for the total sum paid then the recent judgements in favour of the buyer would seem to enforce this view.

elko2



Joined: 24/07/2007
Posts: 4400

Message Posted:
05/10/2010 22:53

Oh dear dear, I got only the first page of the document but that is sufficient for me to comment upon.



What you sent me is not a Court Judgement Order but an appliation to court to register an agreement between the two sides. If I was a judge I would have refused to do so for various reasons but mainly because it is not specific enough on a timetable. The judge has the power to refuse it or to alter it with the agreement of the parties. So what is the new agreement as registered with the court? You should have a copy of that with the cold stamp of the court on it. Nothing less would satisfy me.



Anyway, anything like that which is registered by the court forms a new agreement and if the parties do not abide by it, the agreement can become a cause for a new court action!!! With such an agreement I can think of many problems. For example because of the Specific Performance Law you cannot ask for title deeds. What about compensatioın? Nothing about it. so what happens then?

is

Brinsley


Joined: 04/04/2009
Posts: 6858

Message Posted:
05/10/2010 22:56

Msg 1

Sorry to say but I think you're buying the Advocate a new BMW!



Richard

elko2



Joined: 24/07/2007
Posts: 4400

Message Posted:
05/10/2010 22:59

msg. 6

Groucho wrote: "If the contract specifically requires the deeds to part of the whole transaction in consideration for the total sum paid then the recent judgements in favour of the buyer would seem to enforce this view. "

Can you explain this and give an example of such a judgement please? Was there an appeal?



I believe that SP Law is not applicable for sales off plan or sales to foreigners where PTP is required but all judges and advocates I spoke to do not agree with me. I would love to take such a case all the way to the High Court and the Constitutional Court but until its done so the SP Law stands intact.

ismet

elko2



Joined: 24/07/2007
Posts: 4400

Message Posted:
06/10/2010 11:41

This thread must be of interest to many members. Sometimes, instead of a black or white judgement from the court the two sides may agree on a way forward to settle their differrences. In such cases it may be appropriate to put this new agreement on record and it is legally binding on parties. However, if one side does not act accordingly he can be sued based on the new agreement registered with the court. It is called "Declaratory Judgement". One good thing about it is that there is no stamp duty on it but you have to start a fresh case in court to persue it. The effect of the Declaratory Judgement is to modify your original agreement for better or for worse!

The High Court gave a very important judgement in 1994 on this issue and emphasized this point, ref. Y/H 22/93. the following quote from that judgement is very pertinent:

ctd.

elko2



Joined: 24/07/2007
Posts: 4400

Message Posted:
06/10/2010 11:46

"Şüphe yok ki Mahkeme Nizamatına dayanarak açılan bir davanın başarıya ulaşması için alacağın vadesinin gelmiş olması veya buna benzer bir engelin bulunmaması gerekir."



My translation:

It is obvious that in order to win such a case, any court case based on such a Declaratory Judgement must not have any obstacles like the claim being too early or similar"



In other words, if one side has promised to do something without specifying the time, the right time to sue may never come!!! Here they say that you can sue the other side when the snow on mount Erciyes melts-apparently there is always snow there

ismet

greenman


Joined: 16/02/2008
Posts: 526

Message Posted:
06/10/2010 12:35

Thank you for the excellent and informative response you have made. If only I could find as honest and skillful a lawyer to take on my case - not for the want of trying as 3 tried so far. After studying my Court file, Lawyer 3 informed me in writing that what I have is a Judgement and a Rule of Court, drawn up on the same day.

In his words: 'The Judgement orders Defendant No 1 to transfer to you half share of a property situated in ********......'

'No time has been specified as to when the share transfer was to be made and when payment was to be effected. Of course under this judgement the transfer of shares and payment of money is to take place simultaneously. It is a fundamental principle of law that where there is no time limit as to when an act is to be done, then that act should be carried out after a reasonable time. Under the circumstances to my opinion 6 months is a reasonable time. So you can sue X and Y any time after that.'

Groucho



Joined: 26/04/2008
Posts: 7993

Message Posted:
06/10/2010 12:35

Ismet I emailed you.

elko2



Joined: 24/07/2007
Posts: 4400

Message Posted:
06/10/2010 14:13

Groucho,

Thanks, I replied already with my own thoughts on the subject.

ismet