North Cyprus Legal Advice Dec/Jan 2009/10
In: Legal Advice17 Dec 2009
2009 has seen many changes in Northern Cyprus law and most of them were for the better. Many issues are still to be resolved but with the help of Naomi Memhet, Lincguide will continue to unravel some of the finer points of law in Northern Cyprus next year. Scroll down to read the answers or click the link to go directly to the question below.
1 Electric supply to property under construction >
“From what you have described, I would not have thought that this is a legal connection and is potentially dangerous if the connection has not been carried out by qualified and authorised persons. You may wish to report this matter to the electricity office (Kib-tek). Upon receiving the complaint, the electricity office will usually send someone out to the site to check the legality of the connections and disconnect those which are not legal.
I would also recommend that, with assistance from your advocate, you investigate the reason why your site is still on temporary construction electricity and whether there is any possibility at this current time for this to be changed to permanent domestic electricity”.
2 Residency for minor in Northern Cyprus
3 PTP Turkish pre 74 Title Deeds
“This has been answered in a previous question and answer session. The answer is number 5 on the question and answer session dated 22nd April 2009. As a firm, we have recently received some applications for PTP on pre-1974 Turkish title being refused. The reason given by the Ministry was that the application had been rejected on ‘security grounds’ which is not really specific. We have also had some other applications on non-pre-1974 Turkish title rejected on the same grounds. If is difficult, therefore, to speculate whether there is a pattern of rejections for pre-1974 Turkish title. I would not say that we have yet received enough rejections on pre-1974 Turkish title to say that there is a definite pattern emerging. Interestingly, our applications fore pre-1974 foreign title have been granted”.
4 Bouncing Cheques
“The cheque laws in the TRNC are very strict and writing a cheque which is dishonoured gives the payee the right to instigate both civil and criminal proceedings against the payer.
The payee can take the original cheque stamped by the bank to the police station and make a formal complaint against the payer. The police will usually retain the original cheque and, in return, will issue the payee with a document to show that the original has been handed in to the police as evidence. The police will then bring criminal proceedings against the payer. The payee can take the document issued by the police to an advocate who will then commence civil proceedings against the payer to recover the amount of the cheque together with interest and legal costs in bringing the action.
As part of the civil proceedings, an injunction can be sought against the movable property of the payer. For example if the payer owns a car or has another bank account with funds in it, injunctions can be sought over these assets to prevent the payer from disposing of them and to provide security for the enforcement of any judgment obtained against the payer as a result of the civil proceedings.
Legal fees could be in the region of £1000 or more for this type of case. If the case is successful, the court will order the payer to pay the legal costs, but you may not recover the full amount which you have paid to the advocate.”
5 North Cyprus builder with financial difficulties
“It is quite common in the TRNC for developers to reach agreements with the owners of land under which the developer agrees, instead of buying the land outright for cash, to carry out the construction work to the site and deliver a certain number of completed units to the landowner in consideration for the land.
The landowner, however, may be reluctant to do this if they feel that they have not received what they were entitled to receive under their agreement with the developer and may try to refuse to transfer title to the purchasers or claim rights to the whole of the site. In this event, the purchasers’ only option would be to try to commence litigation against the landowner. The purchasers may or may not have a direct contractual relationship with the landowner, depending on the terms of the Contact of Sale and depending on how the power of attorney granted to the developer by the landowner is worded. The purchasers may therefore have to try to establish a direct relationship with the landowner in order to be able to claim breach of Contract.
Alternatively, an action can be founded on the basis of unjust enrichment by arguing that the landowner has being unjustly enriched by the fact that some construction work has been carried out to their land, thus increasing its value, using the purchasers’ money. It is possible in this situation that the court may, to a certain extent, sympathise with the landowner if the landowner is not directly at fault and if the landowner has generally not received what they contracted to receive from the developer under the agreement with the developer.
Litigation can also be initiated against the developer for breach of Contract. However, an investigation into whether the developer has any assets should be undertaken in order to establish what, if any, assets are available for enforcement of any judgment which may be obtained against the developer as a result of the litigation. Your advocate should carry out searches at the Land Registry and if you have any information about the banks in which the developer may have an account, enquiries can be made in relation to those. If any assets are found, your advocate should seek an injunction over those assets immediately as well as any injunction over the actual property itself to ensure that the developer cannot dispose of these assets. The fact that the developer is out of the country may also delay the litigation process as serving the paperwork on the developer can be more difficult.
I would recommend, at this stage, that you speak to your advocate to find out what the situation is, confirm the nature of the agreement between the developer and the landowner, confirm whether the landowner has any intentions of terminating the agreement with the developer and discuss what options may be open to you to try to pre-empt and avoid any potential future dispute arising. For example, if your permission to purchase has been granted, it may be possible for your advocate to negotiate for transfer of title to take place now. Alternatively, your advocate may be able to negotiate for a charge to be registered over the property to give you better protection.
Your advocate may be able to arrange, if the completion date in the Contract between the landowner and the developer has expired, for an extension to be negotiated and signed so that there is no risk of the landowner terminating the Contract between the landowner and the developer. In order to ease the cash flow problems of the developer, it may also be possible to negotiate a revised payment schedule under which the remaining payments due under your Contract are released in smaller stages as the work progresses”.
6 Driving legally in Northern Cyprus
“Generally, persons who are ‘visitors’ to the TRNC on a visitor/tourist visa and who are not resident in the TRNC do not need to obtain a TRNC driving licence. When you enter the TRNC, you receive a visitor/tourist visa in your passport (usually for 90 days). During this period, you are generally allowed to drive legally in the TRNC using the driving licence from your home country. If you overstay that visa, however, or apply for residency or a work permit or a business permit, you are no longer entitled to drive on your home country’s licence and must apply for a TRNC driving licence.
In this case, it would appear that the driver was on a 90 day tourist visa when this event occurred. We have therefore spoken to the police headquarters in Lefkosa today to seek clarification. We were informed that it has come to the attention of the police that a number of ex-pats are effectively ‘resident’ in Cyprus as they are spending significant amounts of time here, but are avoiding the residency requirements by leaving the country when their visitor/tourist visa expires then re-entering the country and obtaining a new one. The police have said that in circumstances where it can be established that the driver is, for all intents and purposes, ‘resident’ in the TRNC, whether they are actually on a tourist visa at that particular time or not, they will be required to have a TRNC driving licence.
The police informed us that in this particular case, if this driver feels he cannot be considered ‘resident’ in Cyprus because, for example, he spends the majority of his time abroad, he has the right to refuse to pay the fine, in which case, the matter will be passed to the court and he can then appoint an advocate to represent him at court to defend him in the proceedings and put forward the defence that he was not resident at the time the fine was issued and was not, therefore, obliged to obtain a TRNC driving licence.”
7 Issue of Kocan
8 Getting divorced in Northern Cyprus
“Different countries apply different rules to the recognition of foreign divorce orders. However, under UK law, a divorce granted outside of the UK is recognised and valid in the UK if it is valid in the country in which it was obtained (i.e. in Northern Cyprus) and if, at the date the divorce was granted, either the husband or wife were habitually resident or domiciled in that country or a national of that country.
Under TRNC law, in order to institute divorce proceedings, you have to show that the person petitioning for divorce is resident in the TRNC. Therefore, presumably, when you divorced your husband, you met this requirement. As long as, therefore, the divorce order which you obtained was valid here in the TRNC, there should be no reason why it would not be recognised in the UK and no reason for the subsequent marriage by your husband not to be valid? If you believe that this is not the case, you would need to seek the opinion of a family law specialist in the UK to determine for certain whether or no the divorce order is recognised in the UK.”
9 Maintenance contracts
“Usually, where you have communal facilities on a complex, you would have a detailed maintenance contract detailing the services to be provided by the maintenance company and the cost of those services.
If the vendor then refuses to transfer title to you as a result of this, you should ask your advocate to write a formal notice to the vendor requesting that the vendor completes the transfer of title within the period stated in your Contract for doing so. Usually, maintenance arrangements are treated as separate from the main contractual obligations under the Contract and generally, therefore, any alleged breach of the maintenance arrangements by you would not give the vendor the right to withhold performance of her obligations under the Contract of Sale to carry out transfer of title unless there is anything specific and to the contrary about this in the Contract of Sale.
If, after sending the legal notice, the vendor still fails to carry out the transfer of title to you, you would need to decide whether to make payment and receive title or take legal action against the vendor for breach of Contract, bearing in mind, as we have discussed before on this forum, that the court does not have the power to compel the vendor to transfer title to you, although this can be negotiated as part of an out of court settlement.”
10 Trnc Freehold
“TRNC freehold title can be used to refer to any freehold title deed issued by the TRNC authorities. It is often used as a general term to refer to any property within the boundaries of the TRNC which belonged to Greek Cypriots prior to 1974 which came under the control of the TRNC after 1974 and to which the authorities in the TRNC issued title deeds (whether under the exchange system or as a gift).”
11 Residents without citizenship
“Unfortunately, the fact that a child is born in the TRNC does not automatically give that child the right to TRNC citizenship if the parents are not Turkish Cypriot or of Turkish Cypriot descent.
This does not give you the right, as the parents of the child, to remain in the TRNC beyond the period of the tourist visa granted to you when you first entered the country without applying for residency or a work permit.
Recently, there was a general exemption offered by the Government to people who were in the TRNC illegally to encourage them to come forward and apply for a residency or work permit. Under the exemption, for a limited period, people were able to pay a one-off fine of the monthly minimum wage then leave the country and re-enter legally, effectively ‘wiping the slate clean’. The deadline for applying to take advantage of this exemption has, however, now expired.”
12 Vendor stalling over title deeds
“This depends on the reason why the vendor is not carrying out the transfer of title to you.
Obtaining final approval can take a few months from the completion of the construction work, and obtaining the separate title deeds can then take a few months thereafter. It is sometimes possible, if some of the properties on the site are complete, but others are not to obtain a ‘partial final approval’ so that the completed properties can receive their ‘final approval’ without the need to wait for the whole site to be completed. It is sometimes also possible for the vendor to transfer a ‘shared title deed’ while waiting for the separate title deeds to be issued. A shared title deed is good title – it does not in any way mean that you do not have ownership of your property – it is just that you own a share of the freehold of the whole site, such share corresponding to the area of the site which your property occupies. Once you receive a shared title deed, eventually, when the separate individual title deeds are issued, the separate individual title deed for your plot will be registered in your name.
However, it is not always possible or practical to transfer a shared title. The first problem is the calculation of the share. If the site consists of a large number of properties or if the properties are of varying sizes/types e.g. a mixture of apartments and villas or with different internal areas and numbers of bedrooms, the shares will have to be calculated according to the exact meter square area of the property over the total meter square area of all buildings on the site. Subsequent changes are extremely difficult, so an incorrect calculation resulting in an incorrect share being transferred could cause very severe problems. In addition, once you own a share of the freehold, the Vendor may require a power of attorney from you as he will require your signature as a ‘co-owner’ of the site to complete the process for obtaining the separate title deeds and in order to transfer the other shares to the other purchasers. For these reasons, Vendors usually tend to prefer to wait until all of the formalities concerning final approval and separate title deeds are fully completed before transferring title to avoid any such complications.
If there does not appear to be any issue regarding separate title deeds or any other legitimate reason for delaying the transfer of title in your case, you may be able to consider further legal action.
Generally, most Contracts of Sale contain a clause putting an obligation on the vendor to transfer title within a certain period from a request to do so by the purchaser. As a first step, you should ask your advocate to write a formal notice to the vendor requesting that the vendor completes the transfer of title within this period stated in your Contract and informing the vendor that failure to do so will result in legal action being taken by you to recover any losses suffered as a result of this, including the difference between the current reduced rate of transfer tax and the rate which you will have to pay if the transfer does not take place by 31st December 2009.
If the vendor still fails to transfer title after the legal notice has been served and has no valid reason for doing so, you may be able to commence litigation for breach of Contract. However, please bear in mind the issue of ‘specific performance’ as discussed in previous question and answer sessions. If you commence legal action for breach of Contract, the court will not be able to compel the vendor to transfer title to you, although, of course, an out of court settlement resulting in this could be negotiated. If the vendor has no intention of transferring title to you, this many be your only option.”
13 Contract registration
“The official response which we received from the Land Registry is that the fact that a Contract of Sale is registered over a particular property, does not prevent a memorandum from being registered over it in the event that judgment is obtained against the vendor in whose name the title deeds are still registered.
It is also not entirely clear from the legislation whether, in such a situation, the Contract of Sale or the subsequent memorandum would take priority. In terms of time, the Contract, being registered first, should take priority as it was created prior to the memorandum. However, a memorandum is seen as a priority right which would take priority over other interests in property.
I would recommend you speak to your advocate to find out what action the vendor is taking to discharge the memorandum. Failure by the vendor to discharge the memorandum and to transfer title to you will put the vendor in breach of Contract and will entitle you to take litigation against the vendor.”
14 Litigation against law practice in Northern Cyprus
“In the TRNC, there is a reluctance on the part of lawyers to take legal action against each other for negligence. Some people have put this down to a tendency for lawyers to ‘stick together’. Personally, however, I do not believe this to be the case. I think the reluctance of lawyers to take legal action against each other is due to two factors:
Secondly and most importantly, the fact that professional indemnity insurance is not available in the TRNC for lawyers. In the UK, solicitors must have mandatory professional indemnity insurance in order to practice and this must meet certain minimum criteria laid down by the Law Society. In the TRNC, however, this is simply not available. As a firm, we have approached local and international insurance companies about this, but to no avail.
I believe that if an insurance system were to be put into place, lawyers in the TRNC may be more willing to take legal action against each other in cases of negligence and this is certainly a change which needs to and will, I believe, happen in the TRNC in the near future. This will certainly give purchasers better protection and help to establish a remedy for them in situations where lawyers have not fulfilled their duty of care.
The reluctance of lawyers to take legal action against each other also existed in the UK until relatively recently and it is still fair to say that it is not easy to establish negligence against lawyers and other professionals such as doctors in the UK even today with insurance available and mandatory. If the matter relates not only to malpractice/negligence but also to fraud and theft as you state and there has been actual commission of a crime by the lawyer, then this becomes a criminal matter, not only a civil matter, and you would be able to make a complaint to the police about this.
Lawyers do not have immunity from criminal prosecution when they have committed a crime.”
50 things you need to know about Northern Cyprus Law
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