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ΜΕΤΑΒΙΒΑΣΕΙΣ ΑΚΙΝΗΤΩΝ

Ο Νόμος Ν.139(Ι)/2015 που ισοπεδώνει τις υποθήκες.

Αντισυνταγματικός ο νόμος περί εγκλωβισμένων αγοραστών  αφού παραβιάζει τα άρθρα 23 και 26 του Συντάγματος .

Ο Νόμος Ν.139(Ι)/2015 τροποποιεί τον περί Μεταβιβάσεως και Υποθηκεύσεως Ακινήτων Νόμου (ΜΕΡΟΣ VIBΠΡΟΣΤΑΣΙΑ ΑΓΟΡΑΣΤΩΝ άρθρα 44ΙΖΤ – 44ΚΖ. Στην ουσία ο εν λόγω Νόμος επιτρέπει σε αγοραστές οι οποίοι έχουν πληρώσει το τιμήματος πώλησης του ακινήτου προς τον Πωλητή και έχουν καταθέσει το πωλητήριο έγγραφο στο κτηματολόγιο να μεταβιβάζουν το υποθηκευμένο τους ακίνητο προς τους ιδίους από τον Πωλητή ανεξάρτητα αν επιβαρύνεται με υποθήκη, απαλλάσσοντας το από την υποθήκη και κατανικώντας τα δικαιώματα του ενυπόθηκου δανειστή.

Η εν λόγω Νομοθεσία είναι απότοκος  της κατάστασης που δημιουργήθηκε από την υποθήκευση ακινήτων προς τις τράπεζες για την ανάπτυξη τους, από κάποιους εργολάβους οι οποίοι κατέστησαν αφερέγγυοι ή δεν πλήρωναν το τίμημα πώλησης προς τον ενυπόθηκο δανειστή. Οι εργολάβοι υποθήκευαν τα ακίνητα στις τράπεζες και με το προϊόν του δανείου κτίζανε διαμερίσματα και ακίνητα με σκοπό την πώληση τους σε τρίτους αγοραστές και σε πολλές περιπτώσεις επικρατούσε η εν λόγω πρακτική χωρίς οι αγοραστές να ελέγχουν αν τα ακίνητα που αγόραζαν ήταν υποθηκευμένα ή όχι αφού αυτή ήταν η συνήθης πρακτική πώλησης ακινήτων από εταιρείες ανάπτυξης γης. Οι αγοραστές αγόραζαν τα ακίνητα από τους πωλητές, τους έδιναν το τίμημα, ενώ την ίδια στιγμή το ακίνητο ήταν υποθηκευμένο και το τίμημα μπορεί και να πληρωνόταν προς την τράπεζα η οποία δεν εξέδιδε πιστοποιητικό απελευθέρωσης της υποθήκης προς τον αγοραστή. Οι τράπεζα ταυτόχρονα επωφελούνταν από την χρέωση τόκου στον πωλητή.  

Σε άλλες περιπτώσεις ο πωλητής αποπλήρωνε το χρέος προς τις ίδιες τις τράπεζες  με τα χρήματα του αγοραστή, οι οποίες γνωρίζοντας ότι τα χρήματα αυτά προέρχονταν από τον αγοραστή και ταυτόχρονα διατηρούσαν την υποθήκη ανέπαφη.

Κάποιες άλλες φορές, οι τράπεζες που στις οποίες είχε παραχωρηθεί η υποθήκη του αρχικού οικοπέδου οι ίδιες παρείχαν εγγυητικές επιστολές προς τις τράπεζες που δανειοδοτούσαν τους αγοραστές για την αγορά των ακινήτων (εφόσον δεν είχε εκδοθεί ξεχωριστός τίτλος ιδιοκτησίας ακόμα για να υποθηκευτεί υπέρ τους), λάμβαναν το προϊόν του δανείου από τις τράπεζες των αγοραστών (όμως μέσω του πωλητή) αλλά όταν εκδιδόταν ξεχωριστός τίτλος στο διαμέρισα η υποθήκη παρέμενε στο ακίνητο με αποτέλεσμα, ο αγοραστής να έχει εξοφλήσει το τίμημα, να είναι χρεωμένος προς την τράπεζα του και το ακίνητο του να είναι υποθηκευμένο προς την τράπεζα του Πωλητή εργολάβου.

Ακόμα και να μην λάμβαναν το προϊόν του δανείου εκδίδοντας την σχετική εγγυητική στην ουσία έδιναν την συγκατάθεση τους στον αγοραστή για να αγοράσει το ακίνητο το οποίο οι ίδιες εγγυούνταν με εγγυητική επιστολή ως υποθήκη και έτσι θα μπορούσε να λεχθεί ότι αφήνανε τον τρίτο να αγοράσει το ακίνητο μην σιγουρεύοντας ότι τα χρήματα αυτά θα εξοφλήσουν τις ίδιες ως ενυπόθηκο δανειστή και ο αγοραστής δεν αντικαθιστούσε τον ενυπόθηκο οφειλέτη (mortgage assumption).

Ο νόμος όμως υιοθετεί ένα γενικό (broad brush approach) άδικο επειδή στα  χαρτιά φαίνεται ότι ο πωλητής ξοφλήθηκε να αποστερείται η τράπεζα από την υποθήκη της σε περίπτωση που η ίδια δεν συγκατατέθηκε ο αγοραστής να αγοράσει το ακίνητο ή δεν αποδειχθεί ότι ουδέποτε έλαβε χρήματα έναντι της υποθήκης (που είναι μια μορφή συγκατάθεσης). Ο Νόμος θα άρμοζε στις περιπτώσεις που θα απαιτούσε να αποδειχθεί ότι με την συγκατάθεση της τράπεζας πωλήθηκε σε τρίτο αγοραστή το ακίνητο επί του υποθηκευόμενου οικοπέδου ή ότι η ίδια υπήρξε αμελής δίδοντας συγκατάθεση να αγοραστεί το ακίνητο από τον αγοραστή, λειτουργώντας άδικα προς τον αγοραστή (unconscionably), οπότε θα κωδικοποιούνταν κατά κάποιο τρόπο η αρχή του περιουσιακού κωλύματος ή το εξ ’επαγωγής εμπιστεύματος. Συνήθως τέτοια προβλήματα θα λύνονταν με την δημιουργία escrow account έκδοση NOC (no objection certificate) ή mortgage waiver.

Categories
IMMIGRATION LAW

WHEN CAN I BE LEGALLY STOPPED BY BORDER PATROL AGENTS?

We all know that border patrols are there to ensure safety and enforce the law, however these checks need to be done lawfully otherwise someone’s civil liberties are at risk of being violated at the whim of an officer. The 4th amendment to the United States Constitution prohibits unreasonable searches and seizures for various reasons amongst them the right to privacy, freedom and for the protection of the public from possible police brutality ( the more searches and seizures are regulated the less they provide rogue officers with an excuse to harass citizens). Also when a detention requires reasonable suspicion a citizen can resist surrendering her rights to a potentially dangerous officer.When there is regulation officers may feel more inclined to follow them in fear of losing their jobs. It has been ruled in various decisions that due to the rising number of immigration violations that is getting out of hand, that the unreasonableness threshold regarding seizures and searches by legal border patrols varies under various certain circumstances as follows:

BORDER CROSSINGS

1) when someone is crossing the borders or its functional equivalents, border patrols may legally stop someone without reasonable suspicion and search him and his belongings without probable cause or without a warrant. if they have reasonable suspicion of an immigration violation or a crime they can conduct a strip an intrusive search such as a strip search.

  1. At fixed or temporary checkpoints within 100 miles from the border.

It is common for temporary or fixed checkpoints to operate at a reasonable distance from within the border and because they are designed to address immigration related crimes and there is less room for abuse of power compare to roving patrols, they are less intrusive and therefore they can stop the car or even order a driver to stop at a secondary inspection area ( United States v. Martinez-Fuerte  ( see  We further believe that it is constitutional to refer motorists selectively to the secondary inspection area at the San Clemente checkpoint on the basis of criteria that would not sustain a roving-patrol stop. ).Nevertheless they still need probable cause or a warrant for a search ( see United States v. Martinez-Fuerte
428 U.S. 543 (1976)

 

 

” And the reasonableness of the procedures followed in making these checkpoint stops makes the resulting intrusion on the interests of motorists minimal. On the other hand, the purpose of the stops is legitimate and in the public interest, and the need for this enforcement technique is demonstrated by the records in the cases before us. Accordingly, we hold that the stops and questioning at issue may be made in the absence of any individualized suspicion at reasonably located checkpoints.”).

Roving patrols within 100 miles from the border.

 

A lot of you may wonder whether a roving patrol officer can legally stop someone within 100 miles of the border without reasonable suspicion, since due to the nature of the seizure ( a stop is defined as a seizure see UNITED STATES v. MARTINEZ-FUERTE, 428 U.S. 543 (1976) border checks) simillarly to p immigration checkpoints no reasonable suspicion for a stop is required because there is a lower level of privacy within these areas. Nevertheless it has been ruled that the reasonable suspicion rule will not apply to roving patrols. The U.S. Supreme Court distinguished roving patrols from checkpoints on following basis “[T]he circumstances surrounding a checkpoint stop and search are far less intrusive than those attending a roving patrol stop. Roving patrols often operate at night on seldom-traveled roads, and their approach may frighten motorists. At traffic checkpoints, the motorist can see that other vehicles are being stopped, he can see visible signs of the officers’ authority, and he is much less likely to be frightened or annoyed by the intrusion.” So it is clear that it was more concerned with abuse of authority see United States v. Martinez-Fuerte
428 U.S. 543 (1976)

meaning, the Court was more concerned with there was a higher risk that they would use their powers for ulterior purposes under the guise of authority compared to a traffic stop which was conducted in a more official manner).

So even if the roving patrols were within the general area of the border they must have reasonable suspicion before they stop someone ( see United States v. Martinez-Fuerte
428 U.S. 543 (1976) ” In United States v. Brignoni-Ponce, supra, however, we recognized that other traffic-checking practices involve a different balance of public and private interests, and appropriately are subject to less stringent constitutional safeguards. The question was under what circumstances a roving patrol could stop motorists in the general area of the border for brief inquiry into their residence status. We found that the interference with Fourth Amendment interests involved in such a stop was “modest,” 422 U.S. at 422 U. S. 880, while the inquiry served significant law enforcement needs. We therefore held that a roving patrol stop need not be justified by probablecause and may be undertaken if the stopping officer is “aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion” that a vehicle contains illegal aliens. Id. at 422 U. S. 884.”)

 

 

The effect of our decision is to limit exercise of the authority granted by both 287 (a) (1) and 287 (a) (3). Except at the border and its functional equivalents, officers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country. 9   – See more at: http://caselaw.findlaw.com/us-supreme-court/422/873.html#t9

The Court that decided Carroll v. United States, supra, sat during a period in our history when the Nation was confronted with a law enforcement problem of no small magnitude—the enforcement of the Prohibition laws. But that Court resisted the pressure of official expedience against the guarantee of the Fourth Amendment. Mr. Chief Justice Taft’s opinion for the Court distinguished between searches at the border and in the interior, and clearly controls the case at bar:

WHY A HUNDRED MILES?

Because the code of federal regulations which regulates agencies operations states that:

8 CFR 287.1 states that:

(2) Reasonable distance. The term reasonable distance, as used in section 287(a) (3) of the Act, means within 100 air miles from any external boundary of the United States or any shorter distance which may be fixed by the chief patrol agent for CBP, or the special agent in charge for ICE, or, so far as the power to board and search aircraft is concerned any distance fixed pursuant to paragraph (b) of this section.

This regualtion is deemed to be constitutional and therefore it does not contravene the fourth amendment purposes. see United States v. Martinez-Fuerte .

Categories
Familly law

I AM UNEMPLOYED I CANNOT AFFORD CHILD SUPPORT!

 

In today’s tough job market more and more people find are laid off from their long time jobs, trying to make ends meet for themselves and their families through the benefits system. Amongst them are single parents who are obliged to pay child support for their children through a Court child support order. The consequences of failing to meet the monthly payments can often be jail time and it is increasingly becoming a huge cause of concern to them. There seems to be a myth that when someone is unemployed it can be used as an excuse by them not to pay child support or reduce the child support by the amount they used to be paid by their last job. Nevertheless, the obligation to make maintenance payments is a very strict one and considered by society non negotiable since it concerns the farewell of the child  and the Court will not accept as a ground for reduction or even termination of the maintenance order an allegation or even a finding on the evidence of unemployment on its own. The reason for this is that unemployment is not a legal ground for reducing or terminating ( if the obligor leaves bellow subsistence levels ) if it is voluntary. There have been countless cases where the obligor remained voluntarily unemployed while he chose to pursue a lifestyle living on unemployment benefits. What the Courts really assess when they make a decision on child support payment is the obligor’s earning capacity. Earning Capacity in law means  a person’s capability or power to acquire money by contributing a person’s talent, skills, training, and experience. Thus someone who is voluntarily unemployed, meaning he has not made any genuine efforts to find alternative work according to his skills will be presumed by the Court that he is capable of earning as much as he used to earn while he was working or work he could take up based on his skills. Thus, it is very important that the obligor provides the Court with evidence of efforts to sought of any kind and still fails to be hired, or that he either has tried to pursue a clientele in running his own enterprise and was unsuccessful and therefore he is considered involuntarily unemployed meaning he does not have an earning capacity. Of Course the more evidence the easier it will be for the court reduce the child support instead of having a blank picture as to what the earning capacity of the obligor is and thus just imputing an imaginary earning based on the above factors which is not exhaustive. Do not forget that the obligor has to prove his case and not the other way round. So it is important to consider these things and play the unemployment card correctly.

Categories
Uncategorized

Drawing the line between unlawful admissible and unlawful inadmissible evidence in Criminal proceedings.

It is well known according to the law of England and Wales that evidence is criminal proceedings may be admissible in a court of law so far as it is relevant, even though it has been obtained illegally. There is no such doctrine such as the fruits of the poisonous tree doctrine which will automatically render any evidence obtained unlawfully, inadmissible in a court of law and every by product of that evidence as well. The current video is not legal advice but informational in nature and explains whether evidence seized by the police during an extreme scenario should be admitted to Court. The admissibility of evidence at a court of law may make or even brake a case and that why it is significant. Even the though the unlawful obtaining of evidence does not preclude the admissibility of such evidence it may have a bearing on a finding of abuse of process of the proceedings or when its unlawful collection has compromised its quality to the point that that it may be unsafe to rely on it to convict the accused which in this event should not be admitted. Independently of its admissibility, evidence unlawfully obtained may be the subject for an application for a judicial review and a civil suit for damages against the police.

Now suppose that the Police have arrested someone for an offence. In this case are they allowed to search his house?

 

Yes they are allowed to search his house only under certain criteria according to the PACE 1984 ( Police and Criminal Evidence Act 1984).

 

According to section 18 which is entitled as entry and search after arrest it reads that:

 “(1)Subject to the following provisions of this section, a constable may enter and search any premises occupied or controlled by a person who is under arrest for an [F1indictable]F1 offence, if he has reasonable grounds for suspecting that there is on the premises evidence, other than items subject to legal privilege, that relates—

(a)to that offence; or

(b)to some other [F1indictable]F1 offence which is connected with or similar to that offence.

(2)A constable may seize and retain anything for which he may search under subsection (1) above.”

 

Now suppose that an individual is arrested being in control of a vehicle while under the influence of alcohol and the police subsequently enter his house without a warrant according to S 18 of PACE 1984 and while not having reasonable grounds for suspecting that there is on the premises evidence relating either to that offence or to some other offence which is connected with or similar to that offence, they find drugs in his house and he is charged for drug related offences. Should the Court admit the drugs as evidence in the accused trial? According to the common law what matters is its relevancy and not the manner in which it was obtained. However, if it is proved that either the quality of the evidence relating to the drug related offences is compromised or that it constitutes an abuse of process then it may not be admitted by the Court, affording the accused a big advantage in proving his case.

However where are we to draw the line between illegally obtained evidence that is admissible and legally obtained evidence that is not admissible?

If we take a moment to reflect on the above scenario, the police has clearly violated the fairness of proceedings by which it entitles itself to enter a individuals house, search and seize. It is not a case of violating a rule but an outright breach of his privacy. They had no prior search warrant and no reasonable grounds to enter. Such practices, threaten the foundation of liberty and privacy as no one is really free in a society where privacy is taken away on the authorities whim. Think how easy this system could be manipulated by the authorities or even used by citizens amongst themselves for espionage and ulterior motives and thus it would put fear in everyone. Thus even though its admissibility wouldn’t  result in unfairness in the proceedings, it would result in unfairness in the way it was obtained by the police. But does that constitue abuse of process? Well it does since the police was acting oppressively when obtaining the evidence. Therefore under s 78 the Court may exclude the evidence which was so obtained in bad faith and oppressively. ( see  Matto v Wolverhampton Crown Court [1987] RTR 337). However when the offence is a really serious one the crown may exercise its discretion in favour of the Police. So it all depends on the circumstances. A prior case which long before had laid the groundwork throughout for the exclusion of such evidence was the case of Jeffrey V. Black [1978] QB 490 in which it the Court of Appeal considered that the correct test for the admissibility was whether the evidence was relevant and not whether it had been properly obtained but it was troubled by the fact  the accused consent for a search of his house had not been obtained as the police had no warrant or reasonable ground for suspecting that there was evidence on his premises, relating to the offence of stealing a sandwich from a pub as he had been searched while he was still outside of his house. Now the examples just described where flagrant breaches of the law and also oppressive means of obtaining evidence, however when the police execute the warrant unlawfully it is questionable whether the evidence may be excluded as it may not bee deemed oppressive, since there is no trickery involved or misle but  of course it always depends on the facts of the case. What need to be understood is that the courts will not exercise their discretion under section 78 of PACE every time there is a non compliance with a rule as the discretion is only saved for exceptional circumstances. The person who’s privacy was violated though may file an application for a judicial review and later for a private lawsuit claiming compensation for trespass.

Categories
Uncategorized

CONSTRUCTION LAWSUIT

CONSTRUCTION LAW.

The Developer sold the land committing a breach of contract and negligence by failing to maintain to adequately plaster certain areas on the flats and/or maintain an acceptable standard and/or reasonable care and skill when constructing the block of flats resulting to damage to the plaintiffs’ apartments.

Based on the facts of the case the plaintiffs can sue under contract law, negligence and nuisance.

CONTRACT LAW

The plaintiffs can sue under the contract of sale of the land by the developers. This begs the question of whether under the contract the developers are liable for the construction of the flats after the flats have been checked and purchased by the plaintiffs.

The next question is whether the developers are liable under the contract for the damage caused by failing to construct not just the damaged flat but also failing to construct adequately the block of flats in general.

The plaintiffs the and the developing company relationship is governed by the contract of sale. If the damage caused to the plaintiffs flats is not governed by a certain clause in the contract then it could be argued that it was an implied term of the contract that the building’s state will not cause damage or affect negatively the state of the plaintiff’s flat. without the implied term there will be no business efficacy and the sale of the flat would be considered a bad deal.

NEGLIGENCE.

It could be argued that if no written or express term is to be found in the contract of sale of the flat itself, that the developer has a duty of care towards the flat’s purchaser not to cause the flat ( his property) damage through the negligent construction of the building. The duty of care arising out of their close contractual relationship. In that case if the contract can’t cover the breach possibly an action through negligence may do so.

NUISANCE.

It may be also possible for the plaintiffs to sue under nuisance provided that facts of the case amount to nuisance. That is if the developer’s who is in fact still the legal proprietor  or the tenants of the flats and adjoining flats can be held liable for the nuisance caused to the plaintiffs flat.

JOINDER OF PARTIES.

DIFFERENT PLAINTIFFS SAME DEFENDANT.

Except from the developer in his capacity as a contracting party and selling party and also as a selling party and an owner of the adjoining flats, the tenant of the adjoining flats may be held liable for the nuisance caused and he may be joined to the same cause of action since the damaged caused comes out of the same  series of transaction, being the damage caused to their flats through the failure to maintain or the negligent construction of the flats concerned. Secondly they involve a common question of law or fact, namely whether the damage to the plaintiffs flats is caused through brerach of contract, negligence or nuisance. The facts of the involve the same series of transactions, namely the contracts of sale, the construction of the block of flats and the nuisance caused from the adjoining flats. Also since the damage is caused to both parties jointly they the two owners as far the action for negligence or nuisance goes may sell sue jointly on the writ.

 

SAME SERIES OF TRANSACTION SAME QUESTION OF LAW OR FACT.

We have two plaintiffs, two different contracts but same series of transactions since they both bought the house from the same developers, the damage is caused to them jointly by the same alleged negligence and same breaches by the developers and therefore the facts to be tried are whether the flats sold or the block of flats was constructed negligently or through nuisance since the nuisance is allegedly caused through the same series of transaction the sale of the flats inside the very block of flats.

DIFFERENT PLAINTIFFS AND DIFFERENT DEFENDANTS.

Moreover another defendant may be added to the pleading since it is alleged that the damaged caused may be partly or alternatively caused through his nuisance. The nuisance in the current case be caused jointly by the two defendants. In any case, we are talking about the same nuisance ( the tort is the same).

TRESPASS MAY BE ALSO AN OPTION.

Categories
Uncategorized

EXPRESS TRUSTS IN CO-OWNERSHIP. BE CAREFUL WITH WHAT YOU DECLARE.

 

When land is transferred in law to two or more people In law it is called co-ownership. they are compulsorily held to be joint legal owners for practical considerations but in equity they are

When there is a conveyance to two or more people the most famous example being to that of a married couple but they may as well be friends or business partners.

However arguments arise when the relationship breaks down as to whom owns what.

Normally when the conveyancing documents do not expressly declare the extend of each co-owners interest in the share or they have not declared the nature and extent of their shares if the house is shared as a family home they are most likely to hold the land jointly in equal shares or yet the Court may rule according to a wide discretion that one of the partners hold a larger share than the other. This may have disastrous consequences for the co-owner who may discover that he holds very little or even no beneficial interest in the land at all. The consequences of leaving the nature and extent of co-ownership of a partner to chance may be lifelong and severe.

Co-owners may avoid such unfairness and uncertainty by agreeing together over the nature and extent of their shares in the co-owned land. This is applicable to all kinds of co-owners whether they are married or unmarried or conveyed land together for other reasons.

Nevertheless attention should be paid over the nature and extent of the beneficial interest declared since as was ruled in the cases of Goodman v gallant  and ankhania v Chandegra [2012] EWCA Civ 1438 that the execution of an express declaration of trust of each co-owners beneficial interest is conclusive evidence of how the equity will be shared. It may only be varied by a later agreement or proprietary estoppel. Only a vitiating factor may set aside the declaration such as fraud, mistake or undue influence.

So it is extremely important that both partners understand the implication of such declaration since once it is agreed there’s almost no going back despite of the fact that the house was simply put for administrative reasons in joint names such as to facilitate the obtaining of a mortgage loan for the real owner and the partner never lived in the house, claimed any entitlement or contributed a symbolic amount or not amount of money and even had agreed that the beneficial interest belonged to the family of he made up a small portion of see Pankhania v Chandegra [2012] EWCA Civ 1438.

on a final note when there the trust deed declares the nature the co-owners interest eg., tenancy in common and not the extent according to Pankhania v Chandegra [2012] EWCA Civ 1438. since it is conclusive against resulting or constructive trust they will be considered to be holding the land in equal shares since there is no statement to the contrary or yet better there can be an implied trust when there is a valid express trust in place unless the trust deed is set aside for fraud, mistake, undue influence. etc.,

Categories
INSURANCE LAW

NOT AGREEING THE GOVERNING LAW OF INSURANCE POLICIES CAN RESULT IN LESSER OR NO REINSURANCE COVERAGE!

In the House of Lords case of Lexington Insurance Co Ltd v Wasa
International Insurance Co Ltd [2009] UKHL 40, it was
held by the Law Lords that even when a reinsurance policy incorporates
the terms of the underlying insurance policy they could risk of not being
held “back to back” when both insurers and reinsurers have not agreed a
common governing law over the policies or at least when the insurance
policy is not subject to an identifiable governing law.

This is because such legal oversight could leave either the insurance or
reinsurance policy exposed to a takeover by different jurisdictions that
could interpret the terms of the insurance policy differently than the
governing law of the reinsurance policy.
It is very important to make the contracts subject to the same governing
law since this shortfall could be the difference between being reinsured
for the insured amount or reinsured for a substantially lesser amount or
even nothing!
IF THE LOSS IS IN TERMS OF THOUSANDS THE INSURERS COULD INCUR
SUBSTANTIAL LOSSES OVER A SMALL LEGAL BLUNDER.

Categories
IMMIGRATION LAW

IMMIGRATION LAW AND HOUSEKEEPERS IN CYPRUS.

What can an alien do in case he has been sent a decision by the Immigration authorities and/or the Ministry of Interior that he  has been declared an illegal immigrant and that he must leave the Republic.

In this case the immigrant should be in a state of alert. He must immediately conduct a lawyer who will take prompt action by filing a judicial recourse or an application for judicial review of the decision of the authority to declare the alien an illegal immigrant. The alien at this stage may be legally deported at any given time by the authorities if he does not take the relevant counter measures against the immigration official’s decision which are also the filing of interim orders for the stay of the removal and/ or deportation proceedings against him, so that he is not deported while his judicial resource is pending.

Does a judicial resource stay a deportation order?

The filling of a judicial resource does not automatically stay the alien’s removal and/or deportation from the Republic. He or his attorney must also file an application for a stay of the removal or deportation proceedings since it is well known through judicial precedents, that the filing of an application for judicial review does not put a hold on deportation and/or remand orders. The application is separate and stays the order meaning it prevents the authorities from deporting the immigrant until the final judgment concerning his judicial resource.

Does a stay temporarily release the detainee ?

No the effect of the stay is only temporary, if the application for a stay is successful he cannot be deported, however a stay is of a temporary nature until the final decision on the resource is reached. The detainee will still be held in detention until the decision comes out because the deportation order is stayed, it is not cancelled. Releasing the detainee could frustrate the deportation order if his judicial resource is unsuccessful since he can turn into a wanted person by the authorities with a view to deporting him.

Can an application for an order of a stay of the deportation order alone be filed without a judicial resource?

An application for the removal and/or deportation order of an alien cannot stand if the deadline for the judicial resource of the  decision declaring him an illegal immigrant has expired Κedoum v. Δημοκρατίας (2005) 3 Α.Α.Δ. 505 και Joudine ν. Δημοκρατίας (2006) 3 Α.Α.Δ. 500.  . This is because the deportation order is incidental to the decision.

On what basis can a deportation or removal order be contested by the alien declared illegal?

The deportation order may be contested  through a provisional order suspending the effect of the administrative at or decision subject matter of the resource on the basis of flagrant illegality, or  irreparable damage  see  Sofocleous Sofocles v The Republic of Cyprus through the Ministry of Education (1971) 3 CLR 345.

What Constitutes flagrant illegality or irreparable damage?

In Frangos and Others v. Minister of Interior and Others(1982) 3 C.L.R. 53 page 27 it is defined by the court as follows

 “Although what amounts to flagrant illegality is nowhere exhaustively defined, it appears to me to involve a clear violation of the procedure envisaged by the law or unquestionable disregard of the fundamental precepts of administrative law …”

 

It has been ruled in cases such NALANI RANASIGNHE RUPASSARAGE, -ΚΑΙ ΚΥΠΡΙΑΚΗ ΔΗΜΟΚΡΑΤΙΑ, ΜΕΣΩ ΔΙΕΥΘΥΝΤΡΙΑΣ ΤΜΗΜΑΤΟΣ ΑΡΧΕΙΟΥ ΠΛΗΘΥΣΜΟΥ ΚΑΙ ΜΕΤΑΝΑΣΤΕΥΣΗΣ,

that when the authorities d not communicate their decision declare the alien ” illegal ” they are commiting a flagrant illegality which allows for the deportation order to be suspended. It is flagrant in the sense that had the decision been communicated to the real to the alien he could have taken measures such as filing a judicial resource while he was still in the Republic.  As far as irrepairable damage goes it cannot be attributed in monetary figures because if the immigrant wins  his case he can the purse a claim in damages through a civil suit.

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Disclaimer:Attorney and Fraud Examiner.One of few that are Certified Fraud Examiners (CFE). The information contained in this website is provided for informational purposes only, and should not be con

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Disclaimer:Attorney and Fraud Examiner.One of few that are Certified Fraud Examiners (CFE). The information contained in this website is provided for informational purposes only, and should not be construed as a legal advice on any subject. No recipients of content from this site,clients or otherwise,should act or refrain from acting on the basis of any content included in the site without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state. The content of this website contains general information and may not reflect current legal developments, verdicts or settlements. LAWSPEC expressly disclaims all liability in respect to actions taken or not taken based on any or all of the contents of this website, weblogs, twitter, facebook, google+. less

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OVERRIDING INTERESTS

OVERIDDING INTERESTS.

THEY ARE LISTED IN SCHEDULES 1 AND 3 OF THE LRA 2002

OVERIDDING INTERESTS: THEY ARE NOT FOUND ON THE REGISTER OF THE ESTATE THEY AFFECT.

THEY CREATE COMOLICATIONS FOR PEOPLE DEALING WITH THE TITLE.

SCHEDULE  1 AND SCHEDULE 3.

Interests of persons in actual occupation

SCHEDULE 1

2An interest belonging to a person in actual occupation, so far as relating to land of which he is in actual occupation, except for an interest under a settlement under the Settled Land Act 1925 (c. 18).

SCHEDULE 3

Interests of persons in actual occupation

 

2An interest belonging at the time of the disposition( at the time of completion)  to a person in actual occupation, so far as relating to land of which he is in actual occupation, except for—

 

(a)an interest under a settlement under the Settled Land Act 1925 (c. 18);

 

(b)an interest of a person of whom inquiry was made before the disposition and who failed to disclose the right when he could reasonably have been expected to do so;

 

(c)an interest—

 

(i)which belongs to a person whose occupation would not have been obvious on a reasonably careful inspection of the land at the time of the disposition, and

 

(ii)of which the person to whom the disposition is made does not have actual knowledge at that time;

 

(d)a leasehold estate in land granted to take effect in possession after the end of the period of three months beginning with the date of the grant and which has not taken effect in possession at the time of the disposition.

SCHEDULE 1 first registration does not include a registrable disposition.

There may be a voluntary registration according to section 3 of the LRA 2002. At this point in time the land is registered but the no registrable disposition has been created out of the legal estate according to ss 27. Therefore it does not make any difference  whether the interest is discovered or not by the already existing registered land owner. What MATTERS IS WHETHER THE PERSON CLAIMING THE PROPRIETARY RIGHT AT THAT TIME IS IN ACTUAL OCCUPATION AT THE TIME OF THE FIRST REGISTRATION. IN CONTRAST WITH SCHEDULE WHERE THE INTEREST WONT BIND THE NEW PURCHASER UNLESS IT  BELONGS AT THE TIME OF THE DISPOSITION  ( COMPLETION OF THE SALE).

 

So if actual occupation was before sale but not at the time of completion will not count and SCHEDULE 3 will not apply and the interest will not be binding on the registered disposition for value.

 

AN INTEREST UNDER A TRUST OF LAND WILL NOT BIND WHEN THE TRSUTEES HAVE BEEN AUTHORIZED EITHER BY THE TRUST DOCUMENT OR THE BENEFICIARIES TO CONVEY THE LEGAL ESTATE.

This authorization may be done in various ways and includes:

a) overreaching according to LPA 1925 S 2 (1) ii, 27. because the trustees are considered by statute to have power to overreach the beneficial interests.

b) If there is no overreaching but there is evidence ( easier shown in an express trust than an implied) that the trustee has a power to convey the legal estate either by mortgage or sale of the land or othrwhise. ( no breach of trust occurs because of the powers so the trustees are authorized to convey the legal estate)

c) When there is no authority to convey the legal estate by the trustee’s but the beneficiaries under the trust of land have given their implied or expressed consent to the conveyance. ( by signing a consent form or if the mortgage by the implied trustee was the only way to purchase the house and therefore give rise to their overriding interest so that there is an implied consent. ( see Henning)

– Also goes for subsequent mortgages when there is subrogation but only for the amount consented for the first authorized mortgage.

d) If there is no such power contained in the trust , the trustee acts in breach of trust and the Beneficiaries ratify the breach according to agency principles. eg., they accept and use the mortgage or sale money for their own purposes.

ESTOPPEL

Estoppel slightly defers from authorization in that is said to apply in cases where for example when the occupier has knowledge of the mortgage but approval is neither saught nor given. ( seeUlster Bank Ltd v Shanks)

IF THERE IS AN UNAUTHORIZED  BREACH OF TRUST THE OVERRIDING INTEREST WILL NOT BIND AND THE PURCHASER IS PROTECTED IF:

 (a)an interest under a settlement under the Settled Land Act 1925 (c. 18);

 

(b)an interest of a person of whom inquiry was made before the disposition and who failed to disclose the right when he could reasonably have been expected to do so;

 

(c)an interest—

 

(i)which belongs to a person whose occupation would not have been obvious on a reasonably careful inspection of the land at the time of the disposition, and

 

(ii)of which the person to whom the disposition is made does not have actual knowledge at that time;

 

(d)a leasehold estate in land granted to take effect in possession after the end of the period of three months beginning with the date of the grant and which has not taken effect in possession at the time of the disposition.

 

What may be considered as actual occupation: living in a house counts as actual occupation, regardless of whether the proprietor is living there as well.

His agents may be considered to be occupying the place .like in the case where the builders were we the authority of the wife occupying the house, but I can’t send someone on my behalf, like my cousin to occupy the house  for me, it has been held.

TIME OF THE OCCUPATION IS AT THE TIME OF COMPLETION OF THE SALE AND NOT AT THE TIME OF REGISTRATION.

The reason for this is that the purchaser makes enquiries about the house before he purchases  the house. Moreover its unfair for a buyer to have completed the purchase only for an overriding interest to arise after, then the house would have been of no use to him while he has already committed himself or herself by paying  for the land.