Tag: Ioannides Demetriou LLC

Illegal purpose contracts: Can they ever be enforced under Cyprus Law? – Understanding the “illegality defence”

Posted on | by Paschalis Paschali

“No Court will lend its aid to a man who founds his cause of action upon an immoral or illegal act” said Lord Mansfield CJ in Holman v Johnson (1775) 1 Cowp 341, and marked the Cyprus legal framework around illegality in contracts up to the present date. The principle was redefined in the case of Tinsley v Millingan [1994] 1 AC 340 where the so called “reliance test” was established, essentially providing that if a Claimant needs to rely upon an illegal act in order to advance his claim, then that claim should be rejected. Also known as the common law principle of “ex turpi causa non oritur actio” (meaning “no action can arise from an illegal act”), this maxim usually presents itself as the “defence of illegality”, which is invoked by Defendants so as to argue that the claim against them should not succeed as it is based upon an illegal act.

The case of Christodoulou and others v Antonius H.F.M. Vraets, Civ.Appeal No. 329/2006, is a good example of how Cyprus Courts react to the invocation of this defence. In that case, the Claimant, claimed that he was entitled to the recovery of the amount of $856.000 which he paid as part of an agreement between himself and Defendants 1 and 2. The agreement considered the purchase of rough diamonds from Africa, which would subsequently be sold to the black market and would be exported from Angola to Belgium for processing. All three parties would divide the proceeds from the sale of the processed diamonds.  The Claimant brought an action against both Defendants, as after the payment of the amount above he received no percentage from the sale of the processed diamonds. Defendant 1 attempted to rely on the “illegality defence” and subsequently alleged that since the agreement between the parties was carried out for an illegal purpose, the Court could not “lend its aid” to a man whose cause of action was based on an illegal contract and therefore the Claimant was not entitled to recover his money. The Cyprus Court of Appeal, based their reasoning on the cases of Holman v Johnson and Tinsley v Millingan above and upheld the Defendant’s argument. It was essentially held that since the Claimant was aware of and participated in the illegality of the transaction, he was not entitled to the recovery of his money.

The case of Andronikou v Mavropoulou and another, Civ. Appeal No. 14/2014 is also relevant. In this case, the Claimant brought an action against the Defendant and his daughter for fraud, false representation, deceit and unjust enrichment. The Claimant contended that she had made an agreement with the Defendant, that she would pay him an amount of money, which the Defendant subsequently would pay to certain “key officials” of a developing company so as to persuade them to buy the Claimant’s land. The Claimant’s land was indeed acquired by the developing company but the Defendant took the money and placed them to his daughter’s account instead. The first instance court held that the Claimant was entitled to the return of her money. The Defendant appealed. The Court of Appeal’s decision was not unanimous. It was held by majority that it was evident that the agreement between the parties was signed for an illegal purpose, namely bribery. The Court could not therefore “lend its aid” to the Claimant and hence the latter was not entitled to the recovery of her money.

Remarkably enough, the Court of Appeal accepted in both cases cited above that the Claimant and the Defendants were “in pari delicto”, meaning “in equal fault” regarding the signing of the illegal contract. Yet despite the above finding, the Court held that the Claimants were not entitled to the recovery of their property, the inevitable result of their decision being that the property remained to the Defendants’ possession.

The following questions subsequently arise: If it is accepted that both parties have contributed equally to the illegality of the contract, why is it acceptable for one party to retain the property and not for the other? Why do we consider it unacceptable for the Claimant to recover his property because of his misconduct, while, the Defendant who is culpable of the same misconduct, is often allowed to keep the property?

Although it is evident that this strict approach aims at encouraging morality and ethos in every-day transactions, it is doubtful whether it represents the common sense of justice given the “paradox” results that is sometimes creates.

The UK Courts did not fail to notice the “anomalies” created by the strict application of the “illegality defence” and completely changed their approach as to its application in 2016 with the adjudication of the case of Patel v Mirza [2016] UKSC 42. The Claimant in this case transferred an amount of money to the Defendant intending the latter to trade in shares in the Royal Bank of Scotland using insider information that he anticipated receiving. Neither the insider information, nor the purchase of shares ever materialized. When the Claimant brought an action against the Defendant, the Defendant attempted to rely on the “illegality defence” and argued that the Claimant could not recover his money as trading by using insider information is illegal. The Supreme Court held that the Claimant was entitled to the recovery of his money and that in fact, there is no reason for a party who manages to prove that he is capable of recovering his property on the basis of unjust enrichment, not to do so, just because the monies were paid to the Defendant for an illegal purpose. Additionally, the Supreme Court, held that in applying the “illegality defence” the following three considerations need to be taken into account: a)what is the purpose of the law that has been infringed and whether rejecting the claim would enhance that purpose b) any other relevant public policy on which the denial of the claim may have an impact c) whether the denial of the claim would be a proportionate response to the illegality.

The approach adopted in of Patel v Mirza demonstrates a shift from a rigid approach to a more flexible one which takes into consideration the peripheral circumstances of the case and is capable of producing more reasonable and pragmatic results.

Although the case of Patel v Mirza has been invoked in several first instance court decisions in Cyprus, to some of which, the invocation was indeed successful, it is apparent that the dominant approach regarding the  application of the illegality defence remains the one established by Holman v Johnson and Tinsley v Millingan. Of course, the fact that the Cyprus Court of Appeal has not yet been given the chance to apply or make holistic reference to the case of Patel v Mirza plays an important role to the reproduction of the strict approach established by the “reliance test”.

What is certainly inarguable is that the case of Patel v Mirza which has shown the “way forward” to a more liberal approach has not been overlooked by the Cyprus Courts. What remains to be seen is how this approach will affect and re-shape the application of the “illegality defence” in Cyprus law.

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Evaluating EU Sanctions Policy: Insights from Article 263 of the Treaty on the Functioning of the European Union

Posted on | by Paschalis Paschali

Introduction

Article 263 of the Treaty on the Functioning of the European Union (TFEU) stands as a pillar of judicial oversight within the EU, providing a mechanism for private parties to challenge the legality of EU acts and serves as a vital instrument for ensuring legal integrity, accountability, transparency and the protection of fundamental rights.

Through the recent judgments of the General Court of the European Union on the cases of Russian oligarchs, Petr Aven and Mikhail Fridman, who successfully challenged their inclusion on the EU sanctions list, we examine its scope, standing requirements, and grounds for annulment of EU acts and explore the implications of Article 263 in the context of EU sanctions policy.

Bringing an action for annulment under Article 263

The EU Courts have jurisdiction to review the legality of acts of EU institutions (European Council, European Parliament, Commission, European Central Bank and other institutions, bodies, offices or agencies of the EU). Embedded within Article 263 of the TFEU lies the essence of judicial review, affording third parties the opportunity to contest the legality of EU legislative acts and acts intended to produce legal effects vis-à-vis such third parties.

Distinguishing between privileged applicants (EU countries, the European Parliament, the Council and the Commission), semi-privileged applicants (the Court of Auditors, the ECB and the Committee of the Regions), and non-privileged applicants (legal and natural persons amongst others), Article 263 limits non-privileged applicants’ standing to those acts that affect them particularly and requires private parties to satisfy stringent standing requirements and to demonstrate that the reviewable act is either addressed to them or is of direct and individual concern to them.

An action for annulment must be initiated within 2 months of the act’s publication or of its notification to the applicant. If the act is not published or notified, the deadline runs from the point at which the applicant gained knowledge about it by other means.

Article 263 TFEU enumerates grounds for annulling EU acts, including lack of competence, procedural irregularities, infringement of EU treaties or any rule of law relating to the application of the EU treaties, and misuse of powers.

If the applicant is successful, the General Court may declare the contested act void, usually from its entry into force. The General Court’s judgment is subject to appeal before the ECJ, on points of law only.

The Case of Aven and Fridman: Unraveling the Implications

In a watershed moment, the recent judgments by the General Court in Cases T-301/22, Aven v Council and T-304/22, Fridman v Council dealt a significant blow to the EU’s sanctions regime against Moscow.

Following Russia’s invasion of Ukraine, the Council of the European Union adopted acts placing Petr Aven and Mikhail Fridman, major shareholders of Alfa Group, a conglomerate including one of Russia’s major banks, on the EU sanctions list. The Council alleged their association with sanctioned individuals, including Vladimir Putin himself, and support for actions and policies undermining Ukraine’s sovereignty, leading to the freezing of their funds and economic resources.

In order to justify the inclusion of Fridman’s and Aven’s names on the disputed sanctions lists, the Council relied on articles published in the media and on several websites which concerned the control of Alfa Group by the applicants and the financing of a charity project run by Mr. Putin’s daughter and on an open letter signed by Russian and American journalists, intellectuals, activists and historians, in which the authors protested against the invitation of the applicants to the Atlantic Council’s headquarters in Washington.

The General Court upheld the applications filed by Fridman and Aven, concluding that the reasons provided in the initial acts lacked sufficient substantiation, rendering the inclusion of Aven and Fridman in the sanctions lists unjustified. While acknowledging a potential association between Aven, Fridman and Vladimir Putin or his circle, the Court asserted that the evidence relied upon, does not demonstrate their involvement in actions undermining Ukraine’s territorial integrity, sovereignty, or independence and found no proof of their provision of material or financial support to Russian decision-makers responsible for Crimea’s annexation or Ukraine’s destabilization, nor any benefits received from such decision-makers.

The successful challenge by Petr Aven and Mikhail Fridman not only exposed flaws in the EU’s sanctions mechanism but also shed light on the hasty assembly of evidence, often relying on questionable sources such as press coverage.

The judgment’s implications extend beyond the realm of legal scrutiny, sparking criticism of the EU’s sanctions policy and its effectiveness in addressing geopolitical challenges. Some argue that the judgment signifies a collapse of European sanctions policy and a declaration of impunity for acts undermining international stability. The designation of the judgment’s delivery as a ‘Day of Oligarch Triumph’ underscores the gravity of its consequences.

Conclusion

As the dust settles, questions loom over the future of EU sanctions policy and the role of judicial oversight in upholding accountability. The judgment serves as a reminder of the need for transparency, robust evidence, and adherence to legal standards in EU decision-making processes.

Article 263 TFEU once more emerges as a vital instrument for ensuring legal integrity and upholding the rights of individuals and entities within the EU and by evaluating its recent application, it becomes evident that the principles of judicial review are essential safeguards against arbitrary decision-making within the EU.

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Navigating Trust Litigation Safely: Understanding Beddoe Orders

Posted on | by Paschalis Paschali

Trustees play a crucial role in managing trusts, ensuring the best interests of beneficiaries are upheld while navigating legal complexities. However, when trustees face litigation, the potential for personal liability can be a daunting prospect.

Indemnity out of the trust fund or personal liability?

Although the general rule of trust law is that a trustee is entitled to be indemnified out of the trust fund for any expenses or liabilities properly incurred on behalf of the trust, this general principle is only applicable when the trustee is acting properly and reasonably. Therefore, trustees may lose their right to protection from liability if it is found that they have brought, defended or continued proceedings unreasonably. As the trust lacks distinct legal identity, the proceedings typically involve actions either initiated by or directed against the trustee in their capacity as such and therefore trustees often litigate at their own risk as to costs.

Enter the Beddoe Order, a legal mechanism designed to protect trustees from such risks while safeguarding trust assets.

What is a Beddoe Order?

Named after the landmark case Re Beddoe (1893) 1 Ch 547, a Beddoe Order allows trustees to engage in legal proceedings in their capacity as trustees, ensuring that they will be reimbursed from the trust fund for any expenses incurred in the litigation. This order effectively shields trustees from personal liability and covers both the trustees’ own costs and the costs trustees are ordered to pay to third parties.

The primary reason for trustees to seek a Beddoe Order is to mitigate the personal financial risks associated with trust-related litigation. Without such protection, trustees could find themselves personally liable for legal costs if the court later deems their actions unjustified or not in the best interests of the trust.

Procedure for a Beddoe application

A Beddoe application should be brought by the trustee, before the latter embarks on any litigation. The application would normally be brought in separate proceedings by the alternative procedure provided by Part 8 of the New Civil Procedure Rules and pursuant to the provisions of the Cyprus International Trusts Law no. 69(I)/1992 as amended, which enables a trustee to seek the Court’s directions as to how they will act in relation to a particular matter.

The Court assesses the arguments presented by the trustee and any other parties to the Beddoe application, e.g. the beneficiaries, to determine whether initiating, defending, or continuing the underlying proceedings serves the overall interests of the beneficiaries. This decision involves discretionary judgment, with the Court having the freedom to consider any relevant factors. Specifically, the Court considers aspects such as the anticipated outcome and costs of the underlying proceedings, as well as the proceedings’ value to the trust.

Appropriateness of a Beddoe Order

However, a Beddoe application is not appropriate in all types of trust disputes. As per the distinction deriving from Alsop Wilkinson v. Neary [1996] 1 WLR 1220, there are three types of trust litigation:

(a) A third party dispute between trustees and third parties, for example for breach of contract between the trustee, in their capacity as trustee, and a third party.

A Beddoe application is more standardly used in third party disputes where in the normal course of events, a trustee acting reasonably would not bear the costs of the litigation personally.

(b) A trust dispute, namely a dispute concerning the trust and the trust assets. A trust dispute can be either ‘‘friendly’’ or ‘‘hostile’’.

Friendly claims are those who are deemed to be brought for the benefit of the trust fund as a whole and usually involve questions as to the proper construction of the trust instrument and questions arising in the course of the administration of the trust. Beddoe applications are considered appropriate in cases of friendly trust disputes.

On the other hand, hostile claims are usually third party claims alleging for example that trust assets should never have formed part of the trust fund or challenging the validity of the trust. A Beddoe application is rarely appropriate in the case of hostile trust disputes because the Court would first need to resolve the underlying dispute before deciding whether it is appropriate to determine the costs in advance.

(c) A beneficiaries dispute, i.e. a dispute between the trustee and one or more beneficiaries stemming from the trustee’s actions in administering the trust, for example, a beneficiary’s claim for breach of trust or for failure of the trustee to exercise their discretion or their duties.

As in the case of hostile trust disputes, by applying for a Beddoe Order in a beneficiaries dispute, the trustee is considered to be asking the Court to pre-empt the resolution of the underlying dispute and therefore, the appropriate course in such cases is to resolve the underlying dispute before determining the costs.

Can a trustee obtain Beddoe relief retrospectively?

Nevertheless, as it was decided in Blades v. Isaac [2016] EWHC 601 (Ch), the trustee’s failure to seek a Beddoe Order before embarking in litigation, does not prevent them from requesting a Beddoe Order and being indemnified from the assets of the trust at the end of the proceedings, once the issues at stake have been clarified.

As trust law evolves, the role of Beddoe orders continues to adapt to new challenges and legal interpretations. Recent developments in the UK and other common law jurisdictions indicate that courts are willing to grant Beddoe relief to trustees, provided that trustees act in the best interests of the trust overall when navigating legal proceedings and suggest an increased emphasis on transparency and accountability in trust administration.

Conclusion

Although in all common law jurisdictions, seeking for Beddoe relief is common practice, Cypriot courts have not yet thoroughly addressed the issue, possibly because of specific indemnity clauses in trust deeds. However, trustees should consider prudent to forego a Beddoe application only in circumstances where they already possess a distinct indemnity, specifically granted vis-a-vis the litigation in question. In the complex landscape of trust administration, Beddoe Orders serve as a crucial tool for trustees to navigate litigation safely while protecting trust assets and beneficiaries’ interests. By understanding the significance of Beddoe Orders and seeking them when necessary, trustees can fulfill their duties with confidence, without risking personal liability.

Ioannides Demetriou LLC: Top Tier Firm in the Legal500 EMEA 2024 rankings

Posted on | by Paschalis Paschali

March 2024: IOANNIDES DEMETRIOU LLC has achieved top honours in The Legal 500 EMEA 2024 Rankings.

With top rankings in Banking and Finance, Commercial, Corporate and M&A, Dispute Resolution, Real Estate and Construction, and EU and Competition, our people also received notable recognitions for which we are proud.

“The law firm of Ioannides Demetriou LLC has exceptional associates and partners. The associates of Ioannides Demetriou have extensive legal knowledge, are always eager to assist, prompt in their turnaround and a team with qualities that anyone is glad to work with.”

Chairman Pambos Ioannides is in the Hall of Fame for Corporate and M&A, a Leading Individual for Dispute Resolution, and Recommended for Banking & Finance, EU & Competition, and Real Estate and Construction.
Managing Director Andrew Demetriou is in the Hall of Fame for Real Estate & Construction, Dispute Resolution, and Recommended for Corporate and M&A, EU & Competition.
Partner Christina Ioannidou, is a Leading Individual for Banking & Finance, and Recommended for Corporate and M&A, Dispute Resolution, and EU & Competition.

Next Generation Partners: Katerina Hadjichristofi, Zoe Christou, Anna C. Christou, Savvas Yiordamlis, Theo Demetriou

Recommended Lawyers: Christos Frakalas, Demetris Kronides, Anna Christou, Nicolas Panayiotou, Elias Demetriou

Rising Star: Evie Constantinou

Note from the Editor at The Legal 500 Europe, Middle East and Africa (EMEA), Ella Marshall: “The EMEA guide provides researched coverage of over 80 countries and over 2,700 ranked law firms. Law firms pay nothing to participate and so we are free to make ranking decisions on merit alone.

Our research is conducted annually, providing a detailed qualitative assessment of various factors including work conducted by law firms over the past 12 months and historically; experience and depth of teams; specialisms and ancillary services; and, importantly, opinions of law firms’ clients – each year, The Legal 500 series contacts over 300,000 clients globally to obtain feedback on which law firms meet the criteria required by today’s in-house counsel and business leaders, wherever in the world their work takes them. All of this is used to benchmark each law firm versus competitors in the practice area in question.”

For more information contact us here.

The abolition of the UK’s non-dom regime – Should UK non-doms consider relocation to Cyprus?

Posted on | by Paschalis Paschali

The abolition of the UK non-domiciled (or non-dom) status in the last UK budget marks the end of an era for the UK’s tax system. It might also be a game-changer in global mobility as many UK resident non-domiciled individuals might seek to relocate to other jurisdictions in order to shield their overseas earnings from taxation. One such jurisdiction could be Cyprus.

What are the UK’s non-dom rules?

Broadly, non-doms are individuals who are resident in the UK, but who claim that their domicile, being the centre of their personal and financial interests, is outside of the UK. Crucially, hitherto, a non-domiciled individual who was UK tax resident was broadly taxed on income and gains on a remittance basis only by contrast to a UK tax resident and domiciled individual who was taxed on income and gains on a worldwide basis, irrespective of remittance. The UK rules changed a few years ago whereby the non-dom status became time limited and, in fact, after a number of years, a hefty remittance basis charge was levied in order to benefit from the exemption. Nevertheless, it still remained an attractive (optional) regime for high net worth individuals with foreign earnings.

Following last week’s UK budget, the non-dom regime will be abolished from 6 April 2025. In its place, the UK government has introduced a new residence-based regime taking effect from April 2025. What is crucial to note is that the new foreign income and gains regime will be relevant only as far as new tax residents are concerned. This is because under the new regime, individuals who have been non-UK tax resident for at least 10 consecutive years will, regardless of domicile status, be eligible to use the new regime for four years.

Very importantly, under the new regime, non-UK income and gains will not be taxable in the UK and can be brought (i.e. remitted) to the UK without UK taxation during an individual’s four-year eligibility period. From the fifth year of UK tax residence onwards, an individual will be chargeable to UK income tax and capital gains tax on worldwide basis.

It would appear that the new regime will apply to all individuals becoming tax resident in the UK after not being tax resident for 10 consecutive years, irrespective of whether they are UK domiciled. As such, this new regime is likely to be very attractive to (UK) expats who decide to return to the UK.

Although Cyprus has many UK expats, as explained in this newsletter, Cyprus also has a very attractive non-dom regime. Therefore, it is unlikely that UK expats living in Cyprus would relocate to the UK just to benefit from the new regime, as many of the benefits of this regime are essentially replicated in Cyprus’ non-dom regime and for 17 years as opposed to the four years provided for by the UK non-dom regime.

What is likely to happen now is a competition between countries with preferential regimes for high net worth individuals to attract UK non-doms who will no longer benefit from the UK tax regime.

Cyprus is such a jurisdiction with an attractive system overall, combined with special privileges to non-domiciled tax residents.

The concept of domicile in Cyprus law originates from the Wills and Succession Law (Cap 195), which is based on English law. This law provides that every person has a domicile of origin or a domicile of choice. An individual’s domicile of origin is that of his/her father’s domicile (at birth). A person acquires a domicile of choice by establishing his home at any place with the intention of permanent or indefinite residence therein. The domicile of origin prevails and is retained until a domicile of choice is in fact acquired. Under the Special Contribution for Defence Law, a non-domiciled individual may be deemed as domiciled in Cyprus if he/she has been a Cypriot tax resident for at least 17 out of the last 20 years prior to the relevant tax year. This means that Cyprus’ non-dom privileges are available for 17 years.

But what are these non-dom privileges?

The combined application of Cyprus’ tax laws (i.e the Income Tax Law and the Special Contribution for Defence Law) allows Cyprus tax resident individuals who are not domiciled in Cyprus to be exempt on their worldwide dividends and interest, whether remitted to Cyprus or not. It is noteworthy that the exemption applies even if the dividends and interest have a domestic source (i.e. they are derived from Cyprus). There is also an exemption from the special defense contribution tax for rental income (but income tax is payable).

In addition to these privileges, the Cyprus tax system has other advantageous features for tax residents in general, whether domiciled or not.

For example, under Cyprus’ Capital Gains Tax Law, capital gains tax is only imposed on the sale of immovable property situated in Cyprus, and for the sale of shares in companies in which the underlying asset is immovable property situated in Cyprus. There is no capital gains tax in Cyprus for any other disposals. This means that the disposal of any other securities (shares, bonds, tradable contracts etc.) are not subject to tax in Cyprus.

Τhere is also a special tax regime for foreign pension income, which is exempt from tax up to €3,420 per year and taxed at only 5% above that threshold.

Furthermore, Cyprus does not have any inheritance tax or gift tax. Again, these rules are applicable to all Cyprus tax residents – whether domiciled or not.

It should be pointed out that dividends and interest received and pensions are subject to 2.65% General Healthcare System Contributions (GESY). However, this is capped so that for every natural person, the total maximum annual amount on which contributions will be paid is €180,000. This means that the maximum annual amount of GESY contribution levied is €4,770.

Another important tax exemption available to all Cyprus tax residents (whether domiciled or not) is the exemption on income from services rendered outside of Cyprus for more than 90 days in a tax year. The services must be rendered to a non-Cypriot tax resident employer. This, combined with the 50% exemption rule for individuals taking up employment in Cyprus (subject to some other conditions) makes relocation to Cyprus a very attractive option for UK non-doms who wish to explore other jurisdictions.

Of course, in order to access these benefits, as a non-dom or not, it is a prerequisite to become tax resident in Cyprus. For an individual to become tax resident in Cyprus, he/she must be resident in Cyprus for 183 days in the relevant tax year and must not reside more than 183 days per year in another jurisdiction. There is also a quicker route to becoming tax resident in Cyprus under the 60-day rule. Under this rule, an individual must spend at least 60 days in Cyprus in the relevant tax year and must not spend more than 183 days in another jurisdiction. The individual must also maintain a permanent home in Cyprus (owned or rented) and must carry on a business in Cyprus or be employed in Cyprus or hold an office with a tax resident of Cyprus during the relevant tax year.

On the basis of the 60-day rule, it is relatively easy to establish tax residence in Cyprus and obtain the non-dom status, if the aim is to access the specific privileges attached to this status.

Whether or not the abolition of the UK’s non-dom regime will lead to an exodus of high net worth individuals from the UK remains to be seen.

It is worth pointing out however that even before the changes to the UK non-dom regime were abolished Cyprus has for a long time now offered an advantageous tax regime for individuals wishing to take the relatively simple steps required to relocate their residence/domicile to Cyprus.

For information on any of the issues raised in this newsletter, please get in touch with us and note that working closely with our associated corporate services provider Nobel Trust we are able provide the full range of advice and services for anybody wishing to be advised as to the benefits of considering Cyprus as a replacement for UK non-dom status.

The regulation of the content of B2C contracts under Cypriot contract law

Posted on | by Paschalis Paschali

Effective consumer protection is an area still in the earliest stages of its development in the Cypriot legal system. Prior to the adoption of Directive 93/13 which provided a substantive test of unfairness and which regulated the content of business contracts through ensuring that unfair terms not be considered binding to consumers, the Cypriot legal system did not provide for a level of consumer protection through statutory or case law. In essence, no measures existed aimed at protecting consumers against contract terms that had not been individually negotiated by consumers in advance and which in turn could grant a considerable advantage to businesses.


Such terms often come in the form of exclusion clauses which can exclude or restrict liability, make the liability or its enforcement subject to restrictive conditions, or exclude or restrict a person from pursuing a right or remedy. As the characteristic of an unfair term is one which increases the number or the difficulty of a party’s obligations, even a force majeure clause may come to be considered unfair if intentionally worded vaguely. If a seller can unilaterally determine a force majeure clause for example, then what is to prevent them from defining a reasonably foreseeable phenomenon as grounds for the removal of liability? Where standard form contracts were established to facilitate commercial transactions and better define the rights and obligations of the two parties, a unilateral approach to the definition of these terms by sellers would necessarily come at the cost of the consumer, who was faced with either accepting these terms or be deprived of the sought goods or services.


Prior to Directive 93/13, Cypriot consumers only had recourse to general principles of contract law and primarily procedural safeguards provided by the Contract Law, Cap. 149 i.e. the key law governing contracts in Cyprus. However and while generally sufficient, Cap. 149 was inadequate in providing the necessary tools in dealing with unfair contract terms, making the implementation of Directive 93/13 necessary for enhanced consumer protection.

Procedural Safeguards of Cap. 149


It could be argued that, in relation to regulating the use of unfair terms, the common law of contract is less concerned with the substance of the contract and more so with the procedure leading to its conclusion. If no illegality is found in what preceded the conclusion of the contract, which could in any way impact the will of the parties to be bound in contract, common law courts would hesitate in intervening since the determination of the substance of the contract remains, based on the principle of privity of contract, within the exclusive competence and autonomy of the parties.


As such, section 13 of Cap. 149, with its emphasis on the concurrence of wills, established that consent is considered a central concept of contract conclusion. If consent is considered to be given “freely”, then the contract is to be respected. With the intention to ensure this, section 14 of Cap. 149 codified a number of principles in order to safeguard that the parties’ consent is “free”, which include provisions on coercion, undue influence, fraud, misrepresentation and mistake.


Yet, beyond the rules established in section 14 emphasizing procedural fairness, Cap. 149 did not provide the necessary tools for examining the substantive unfairness of contract terms. Contrarily, while the Indian Contract Act introduced similar procedural rules, Indian courts also made use of the public policy exception under their section 23 (identical to section 23 of Cap. 149) to strike down contracts whose terms were labelled as contrary to public policy, thereby invoking the illegality of the contract’s object or consideration.


In conclusion, Cypriot law follows the general position of English contract law, where the latter has long taken the view that acceptance of the principles of freedom of contract, the binding force of contracts and the lack of a general principle of good faith and fair dealing precludes the review of the fairness of either the contract as whole or of its particular terms. This can most notably be seen in the instance of contract formation. While a promise could not be considered valid without the corresponding consideration, the acknowledgment of an inadequate or nominal consideration signifies that a substantive inequality of bargaining power is not seen as a ground for a vitiation of a contract.


As regards the fairness of particular contract terms, the common law approach can be illustrated most explicitly in its acceptance of the validity of exemption clauses. That is, when once agreed between the parties, knowingly or otherwise, these clauses can effectively exclude liability both in contract and in tort, severely impacting the balance of rights and obligations between the parties. However, beyond a favorable interpretation of the contract in favor of the weaker party in instances of inequality of bargaining power but also through the use of the contra preferentem principle in instances of ambiguity in interpretation of an exclusion clause, and save in instances of a fundamental breach of contract, the Cypriot contract law tools seemed inadequate in properly regulating the use of unfair terms.


Prior to the transposition of Directive 93/13, Cypriot courts had lacked the legal tools to confront the challenges that came with standard form contracts and in particular seemed unwilling to examine the parties’ initial allocation of risk, even if it was done unilaterally and in a standardized manner by one of the contracting parties. Instead of focusing on the pursuit of mutual assent, the courts were content with the finding of the external communication of intention by the parties through their signatures to the contract. Since both parties seemingly gave their consent to be bound by the contract, Cypriot courts appeared hesitant in interfering with its individual terms, beyond through the use of the above mentioned procedural safeguards in instances where the parties consent to be bound could be impacted. These legal circumstances are what justified the need for the implementation of Directive 93/13. It provided courts the ability to control unfair terms in consumer contracts, though the granting of discretionary power as to the interpretation of the substantive unfairness of contract terms through the control of their content. However, while there is still very limited Cypriot case law applying the Directive’s robust two-tiered unfairness test, it remains to be seen if future applications of this test by the Cypriot courts can promote effective consumer protection or if additional national legislation is required to this end.

–> Contact us here for any information on how we can assist you with the application of Directive 93/13 to your consumer contracts

Cyprus’ Path in the European Green Deal: Integrating the Just Transition Mechanism

Posted on | by Paschalis Paschali
the European Green Deal #EUGreenDeal

As the European Union (EU) embarks on a transformative journey towards a greener and more sustainable future through the European Green Deal (EGD), the question of ensuring that no one is left behind takes a central stage. This article aims to analyse the measures that the government of Cyprus is undertaking to achieve its 2030 and 2050 climate targets and to assess how the concept of social inclusion is endorsed along the way.

National Energy and Climate Plan (NECP)

Cyprus, like other EU nations, has embraced the ambitions of the EGD, aiming to tackle climate change and move towards sustainability. [1]  The NECP is a vital part of this, mandated by EU regulations from 2021 to 2030. Its main objective is to devise cost-effective policies to meet energy and climate goals, driving economic growth and addressing environmental challenges. [2] Approved by Cyprus’ Council of Ministers in January 2020, it outlines the energy sector’s current status, past policies, and future trajectory to achieve national goals by 2030. Its three key pillars focus on emission reductions, energy efficiency, and increasing renewable energy sources.

For emissions, Cyprus targets a 21% reduction in non-ETS sector emissions compared to 2005 levels. Strategies include promoting natural gas, boosting renewable energy, improving carbon sinks, enhancing energy efficiency across sectors, and reducing emissions in transport, agriculture, and waste. [3]

Regarding energy efficiency, Cyprus aims for a final energy consumption of 2.0 megatonne of oil equivalent (Mtoe) and a primary energy consumption of 2.4 Mtoe by 2030. The plan includes energy efficiency obligations for distributors, low-interest loans for efficiency projects, support programs for households and businesses, voluntary agreements with businesses, and various initiatives for efficient lighting, water, and transportation.

Lastly, Cyprus aims to increase the share of renewable energy sources (RES) in its energy consumption. Targets include RES constituting 23% of gross final energy consumption, 26% of gross final electricity consumption, 39% in heating and cooling, and 14% in transportation.

To achieve these targets, Cyprus has adopted a wide-ranging approach, including various support schemes for RES, incentives for electric vehicles, and integrating RES and energy efficiency into public buildings. Efforts also focus on enhancing RES utilisation in the transportation sector.

Solar water heater adoption rates are impressive, with over 90% of households and 50% of hotels utilising these systems. However, effective energy storage solutions are crucial to fully harness solar potential. [4] Initiatives like the experimental energy storage system in Nicosia and EU projects aim to develop policies for integrating energy storage effectively, boosting photovoltaic self-consumption in the Mediterranean.[5]

To address energy security, Cyprus is implementing Liquefied Natural Gas (LNG) imports through the “CyprusGas2EU” project, diversifying energy sources and reinforcing security. Support for projects like the “EuroAsia Interconnector” and “EastMed Pipeline” will further eliminate energy isolation. The EuroAsia Interconnector, connecting Cyprus’ electricity network to the EU continental network, will facilitate RES development, reduce CO2 emissions, and enhance Cyprus’ position in the regional energy sector. [6] This project will also pave the way for widespread adoption of solar energy and sustainable practices, promoting both environmental and economic sustainability. [7]

Future trajectory

Importantly, Cyprus has submitted an updated draft of its NECP to the European Commission for review and approval. This revision is prompted by institutional obligations, failure to meet existing targets, and changes in European energy and climate goals. The revised draft includes, inter alia, commitments to reduce GHG emissions by 32% by 2030 compared to 2005 levels, increase carbon dioxide removals from land use, achieve a 42.5% penetration of RES in gross final consumption by 2030, and contribute to the EU’s mandatory energy efficiency improvement target. [8]

Additionally, Cyprus aims to design policies to support low-emission growth, laying the groundwork for achieving zero emissions by 2050. The Long-Term Low GHG Development Strategy for 2050 aligns Cyprus with the European objective of transitioning to a climate-neutral economy by 2050, emphasising a commitment to a greener future.[9] This strategy complements the NECP and envisions a shift towards clean technologies, promoting innovation and new business models, mitigating climate change impacts, enhancing economic competitiveness, and addressing environmental challenges.

Nevertheless, transitioning to carbon neutrality and renewable energy adoption presents a series of social challenges that require proactive solutions. Therefore, as Cyprus embarks on its journey towards a greener future, the integration of the Just Transition Mechanism (JTM) takes a central role in ensuring that this transition is not only environmentally sound but also socially equitable.

Just Transition Mechanism

The JTM is a critical component of the EGD, acknowledging the socio-economic realities of member states.[10] It provides a framework for financial and policy support to facilitate the transition to cleaner and more sustainable economies while safeguarding livelihoods and communities.[11]Each member state’s unique circumstances further underscore the necessity of adaptable strategies to harmonise environmental and economic aspirations.[12]

In terms of Cyprus, it has recently received the approval for its Partnership Agreement and Just Transition Plan from the EU, entailing over €1 billion in funding from 2021 to 2027. This funding will support various initiatives aimed at promoting economic, social, and territorial cohesion, facilitating the green and digital transition, and fostering competitive, inclusive, and sustainable growth. [13]

One of the most important aspects of the Agreement is the ‘Thalia 2021-27’ Cohesion Policy operational program.[14] A multi-annual, multi-fund development initiative, the Thalia program outlines Cyprus’ strategic plan for utilising resources allocated through the Cohesion Policy Funds.[15]

Central to this initiative is the Just Transition Fund (JTF), which will support an array of vital interventions. The strategic goal is to reduce GHG emissions at the power station in Dekelia and of energy-intensive businesses in general.[16] Recognising the need for social inclusion, Cyprus plans to allocate a portion of the JTF budget to modernise labour market services and support vulnerable populations, women, and youth. Additionally, initiatives to address the shortage of qualified human resources through green education initiatives are emphasised. The program prioritises equal opportunities, non-exclusion, and non-discrimination, ensuring gender equality and compliance with fundamental rights.

In conclusion, Cyprus’ proactive approach aligns with the EGD, addressing climate change, promoting economic growth, and ensuring social inclusion. However, and despite the series of green measures and initiatives that are underway, the nation faces a substantial gap between its commitments and actual outcomes.[17] To improve results and make progress toward the 2030 and 2050 targets, the government of Cyprus must enhance its efficiency in the public sector and collaborate closely with the private sector to streamline not only the processes but also the procedures for implementing all its ambitious projects.

References and URLs:

[1] General Secretariat of European Affairs, ‘CY National Strategy for EU Affairs’ (November 2021)

[2] ‘National Energy and Climate Plans (NECPs)’ <https://energy.ec.europa.eu/topics/energy-strategy/national-energy-and-climate-plans-necps_en>

[3] ‘Cyprus’ Integrated National Energy and Climate Plan’ (January 2020)

[4] Theodoros Zachariadis, ‘Monitoring EU Energy Efficiency First Principle and Policy Implementation’ (Odyssee Mure, November 2021)

[5] ‘Invest Cyprus – CEO Interviews 2018’

[6] ‘Commission Participates in Launch of EuroAsia Electricity Interconnector’

[7] EuroAsia, ‘Significant Benefits for Cyprus from Construction of the EuroAsia Interconnector | EuroAsia Interconnector’ (26 July 2023)

[8] ‘PRELIMINARY DRAFT UPDATE CONSOLIDATED NATIONAL PLAN OF CYPRUS ON ENERGY AND CLIMATE OF CYPRUS 2023’ (27 July 2023)

[9] Department of Environment, Ministry of Agriculture, and Rural Development and Environment, ‘Cyprus’ Long-Term Low GHG Emission Development’ (September 2022)

[10] ‘The Just Transition Mechanism’

[11] Aliénor Cameron and others, ‘A Just Transition Fund – How the EU Budget Can Best Assist in the Necessary Transition from Fossil Fuels to Sustainable Energy’ [2020] Policy Department for Budgetary Affairs Directorate General for Internal Policies of the Union

[12] Sebastiano Sabato and Boris Fronteddu, ‘A Socially Just Transition through the European Green Deal?’ [2020] SSRN Electronic Journal

[13] ‘Partnership Agreement and Just Transition Plan for Cyprus’ (European Commission – European Commission)

[14] ‘ΘΑΛΕΙΑ 2021-2027- Θεμέλια Αλλαγής, Ευημερίας, Ισότητας Και Ανάπτυξης’ (2022)

[15] ‘Short Description – ΘΑλΕΙΑ 2021-2027’ (21 June 2022)

[16] Green Deal: Pioneering Proposals to Restore Europe’s Nature by 2050 and Halve Pesticide Use by 2030’

[17] European Commission, ‘2023 Country Report – Cyprus’, (2023), COM(2023) 613 final

The Sale of Land (Specific Performance) (Amending) Law of 2023 – Purchaser protection when the immovable property is encumbered by a pre-existing mortgage

Posted on | by Paschalis Paschali

This article is also available in Greek

On 12.12.2023, the Sale of Land (Specific Performance) (Amending) Law of 2023 (L. 132(I) of 2023) (hereinafter the “Amending Law of 2023”) was published in the Official Gazette of the Republic of Cyprus.

The Amending Law of 2023 is read together with the Sale of Land (Specific Performance) Laws of 2011 to 2020 (hereinafter the “Main Law”), with the Amending Law of 2023 and the Main Law being referred to together as the “Sale of Land (Specific Performance) Laws of 2011 to 2023”.

This article briefly analyses a completely new procedure implemented by the Amending Law of 2023, which aims to provide preemptive protection with regards to the rights and interests of purchasers of immovable property, in cases where the immovable property happens to be encumbered by a pre-existing mortgage.

Formalities Necessary for the Lodging of a Contract in Cases where the Immovable Property Happens to be Encumbered by a Pre-Existing Mortgage

A key change introduced by the Amending Law of 2023 relates to the requirements that must be met for the lodging of a contract with the District Lands Office (“DLO”), in cases where the contract concerns immovable property encumbered solely by a pre-existing mortgage or contract and the registered owner of such is not subject to any restriction/prohibition.

In addition to the already existing requirements that have to be met for the lodging of a contract with the DLO to be accepted, as these are set out in sub-paragraphs (a), (b) and (c) of subsection (1) of section 3 of the Main Law, the lodging of a contract, in cases where the circumstances described above apply, now necessitates the inclusion of specific written declarations.

The Amending Law of 2023 specifies that the lodging of the contract will be accepted only if it is accompanied by the written declaration of each mortgagee and seller, in relation to which the purchaser confirms knowledge (according to Form A of the Annex), or the written declaration of the purchaser (according to Form C of the Annex).

Form A of the Annex

By means of Form A, the mortgagee and the seller undertake in writing that, if 95% of the contract amount, including any advance payment already received by the seller, is deposited by the seller and/or purchaser into a specific bank account (deposit account) maintained in the name of the seller, then a relevant payment certificate will be issued to the Purchaser immediately (in accordance with Form B of the Annex).

Form A records a commitment on the part of the mortgagee in that, upon payment of the aforementioned amount and issuance of Form B, it shall release or alleviate the immovable property from the encumbering mortgage, but also that, in case of failure on its part to do so, the purchaser shall have the ability to submit Form B with the Department of Lands and Surveys, duly signed and stamped by the mortgagee. In such an instance, the Director (Department of Lands and Surveys) shall proceed to transfer the immovable property into the name of the purchaser.

The purchaser, by signing Form A, certifies that they have received knowledge of the above commitments.

Furthermore, with relevant additions to Sections 5, 6 and 7 of the Main Law, the Amending Law of 2023 explains the practical implementation of the procedure arising from Form A, the consequences that the mortgagee will face in case of non-compliance with its commitment and how the Director (Department of Lands and Surveys) can proceed to transfer the immovable property into the name of the purchaser upon being presented with a duly completed, signed and stamped Form B.

The introduction of Form A and the related procedure seeks to bring about the preemptive protection and safeguarding of interests. These new introductions act as a safeguard for the benefit of all parties involved and especially the purchaser, setting out precisely the actions that must be carried out by the seller and/or the purchaser for the mortgagee to comply with its simultaneously granted commitment to alleviate the property from the encumbering mortgage, as well as the procedures/consequences that may be implemented in case that the mortgagee fails to honour its commitment.

The procedure arising from Forms A and B ensures that the mortgaged property will be transferred freely to the purchaser, once the purchaser has fulfilled its contractual obligations towards the seller.

Form C of the Annex

Alternatively, the Amending Law of 2023 allows the lodging of a contract by including Form C, through which the purchaser essentially acknowledges the existence of an encumbering mortgage affecting the immovable property and assures that it wishes to proceed with the lodging of the contract without it being accompanied by Form A of the Annex.

Form C does not seek to safeguard purchaser rights to the same extent as Form A. In fact, Form C circumvents the whole procedure set out by Form A.

However, it cannot be overlooked that Form C also contributes to the advance safeguarding of purchaser interests by enabling a purchaser to become aware of the existence of an encumbering mortgage affecting the property in question, but also to confirm its willingness to proceed with the lodging of a contract without the use of Form A.

The introduction of Forms A, B and C of the Annex is undoubtedly a positive development, since it implements a new practice that seeks to safeguard the procedures related to purchasing and transferring of immovable property. In order to solve a serious problem that has arisen in recent years, Forms A, B and C aim to better inform and safeguard in advance the interests of a purchaser, who, despite having fulfilled its obligations towards a seller, ends up dealing with a seller who is unable to transfer the immovable property due to the existence of a mortgage.

Greater awareness of the parties involved and completion of real estate transactions without complications contribute to the strengthening of the real estate market, whilst at the same time inspire more confidence on the part of purchasers in relation to the legislative framework that governs the whole process in cases where the property for sale is encumbered by a mortgage.

Apart from the positive elements deriving from the introduction of Forms A, B and C of the Annex, we consider it appropriate to conclude with the following comments, which potentially reveal a need or improvement of the phrasing contained in the aforementioned Forms and clarification of the new procedure implemented by the Amending Law of 2023:

(i) The additional formalities introduced by the Amending Law of 2023 are not exclusive to cases where the property is only encumbered by a pre-existing mortgage. In fact, the Amending Law of 2023 expressly states that the additional formalities also apply to cases where the property is only encumbered by a pre-existing contract. Nonetheless, this does not seem to be reflected by the phrasing contained in Forms A, B and C, which deals exclusively with the case of a pre-existing mortgage, without containing any reference whatsoever in relation to a pre-existing contract.

(ii) Forms A, B and C refer only to seller and purchaser. This implies that these Forms apply only in cases involving the sale and purchase of immovable property. However, such an approach is incompatible with Article 2 of the Main Law and specifically with the definition of the term “contract”, which includes various types of contracts such as assignment, distribution, and exchange contracts.

(iii) Forms A, B and C require for the description of the purchased unit that has been erected and/or will be erected on the property to be recorded. Such phrasing does not seem to be consistent with cases where the contract does not relate to the purchasing of a unit but instead concerns the purchasing of a field or plot.

(iv) The mortgagee’s commitment provided through Forms A and B is conditional on the payment of 95% of the contract value to a predetermined deposit account. This means, however, that the mortgagee is not obliged to extinguish the mortgage, despite the whole value of the mortgage having been deposited, unless 95% of the contract value is first deposited in that account, an amount which may exceed the total value of the mortgage.

(v) Forms A, B and C refer to cases where the immovable property forming the object of the contract is affected by a pre-existing mortgage. Nevertheless, this wording is not consistent with cases where the object of a contract is only part of an immovable property, which part has no connection whatsoever with a pre-existing mortgage that happens to exist in relation to another part of the immovable property which is not for sale and belongs to another co-owner.

The issues raised through the above commentary are expected to be clarified and addressed over time. The Amending Law of 2023 is very recent and, therefore, the practical implementation and application of the procedure arising from Forms A, B and C cannot yet be properly evaluated.

According to information we have received from the Department of Lands and Surveys, it is expected that the officers of the District Land Registry Offices will be continuously provided with guidance and informative circulars, so as to be in a better position to provide information to the public with regards to the new procedures introduced through Forms A, B and C and their proper implementation, aiming to achieve the objectives of the Amending Law of 2023.

Also available in GREEK here

Ο περί Πώλησης Ακινήτων (Ειδική Εκτέλεση) (Τροποποιητικός) Νόμος του 2023 – Προστασία αγοραστών σε περίπτωση ήδη κατατεθειμένης υποθήκης

Posted on | by Paschalis Paschali

This article is also available in English

Στις 12.12.2023 δημοσιεύτηκε στην Επίσημη Εφημερίδα της Κυπριακής Δημοκρατίας ο περί Πώλησης Ακινήτων (Ειδική Εκτέλεση) (Τροποποιητικός) Νόμος του 2023 (Αριθμός 132(Ι) του 2023) (στο εξής ο «Τροποποιητικός Νόμος του 2023»).

Ο Τροποιητικός Νόμος του 2023 διαβάζεται μαζί με τους περί Πώλησης Ακινήτων (Ειδική Εκτέλεση) Νόμους του 2011 έως 2020 (στο εξής ο «Βασικός Νόμος»), με τον Τροποποιητικό Νόμο του 2023 και τον Βασικό Νόμο να αναφέρονται μαζί ως οι περί Πώλησης Ακινήτων (Ειδική Εκτέλεση) Νόμοι του 2011 έως 2023.

Το παρόν άρθρο αναλύει συνοπτικά μια εντελώς καινούρια διαδικασία που θέτει σε εφαρμογή ο Τροποποιητικός Νόμος του 2023, η οποία αποσκοπεί στην εκ των προτέρων καλύτερη διασφάλιση των συμφερόντων και δικαιωμάτων των αγοραστών ακινήτων, σε περιπτώσεις όπου το προς πώληση ακίνητο επιβαρύνεται από ήδη κατατεθειμένη υποθήκη.

Διατυπώσεις αναγκαίες για την κατάθεση σύμβασης στην περίπτωση που ακίνητη ιδιοκτησία βαρύνεται ήδη με κατατεθειμένη υποθήκη ή σύμβαση:

Μια βασική αλλαγή που εισάγει ο Τροποιητικός Νόμος του 2023 αφορά τις προϋποθέσεις που πρέπει να πληρούνται για σκοπούς κατάθεσης σύμβασης, στην περίπτωση που αυτή αφορά ακίνητη ιδιοκτησία η οποία βαρύνεται μόνο με ήδη κατατεθειμένη υποθήκη ή σύμβαση και ο εγγεγραμμένος ιδιοκτήτης αυτής δεν τελεί υπό απαγόρευση.

Πέραν από τις ήδη γνωστές αναγκαίες διατυπώσεις για την κατάθεση σύμβασης, ως αυτές καταγράφονται επί των παραγράφων (α), (β) και (γ) του εδαφίου (1) του άρθρου 3 του Βασικού Νόμου, η κατάθεση σύμβασης, σε περίπτωση που ισχύουν οι περιστάσεις που περιγράφονται πιο πάνω, πλέον προαπαιτεί την συμπερίληψη συγκεκριμένων έγγραφων δηλώσεων.

Ο Τροποιητικός Νόμος του 2023 διευκρινίζει ότι η κατάθεση της σύμβασης θα γίνει αποδεκτή μόνο εάν αυτή συνοδεύεται από τις έγγραφες δηλώσεις εκάστου ενυπόθηκου δανειστή και πωλητή για την οποία ο αγοραστής ενυπογράφως έλαβε γνώση (κατά τον Τύπο Α του Παραρτήματος) ή του αγοραστή (κατά τον Τύπο Γ του Παραρτήματος).

Τύπος Α του Παραρτήματος:

Διά του Τύπου Α, ο ενυπόθηκος δανειστής και ο πωλητής δεσμεύονται εγγράφως ότι, εφόσον το ενενήντα πέντε τοις εκατό (95%) του ποσού της σύμβασης, περιλαμβανομένης τυχόν προκαταβολής η οποία λήφθηκε ήδη από τον πωλητή, κατατεθεί από τον πωλητή και/ή τον αγοραστή σε συγκεκριμένο τραπεζικό λογαριασμό (καταθετικό λογαριασμό) που τηρείται στο όνομα του πωλητή, τότε θα εκδοθεί άμεσα προς τον αγοραστή σχετική βεβαίωση πληρωμής (κατά τον Τύπο Β του Παραρτήματος).
Ο Τύπος Α καταγράφει δέσμευση από μέρους του ενυπόθηκου δανειστή ως προς το ότι, με την καταβολή του προαναφερόμενου ποσού και την έκδοση του Τύπου Β, θα απαλλάξει ή εξαλείψει το ακίνητο από την επιβαρυντική υποθήκη, αλλά και ότι σε περίπτωση παράλειψης από μέρους του να το πράξει τούτο, τότε ο αγοραστής έχει την δυνατότητα να προσκομίσει στο Τμήμα Κτηματολογίου και Χωρομετρίας τον Τύπο Β, δεόντως υπογραμμένο και σφραγισμένο από τον ενυπόθηκο δανειστή, με τον Διευθυντή του Τμήματος Κτηματολογίου και Χωρομετρίας να μεταβιβάζει το ακίνητο επ’ ονόματι του αγοραστή.

Ο δε αγοραστής, με την υπογραφή του Τύπου Α, βεβαιώνει ότι έχει λάβει γνώση των πιο πάνω δεσμεύσεων.

Περαιτέρω, με σχετικές προσθήκες επί των άρθρων 5, 6 και 7 του Βασικού Νόμου, ο Τροποιητικός Νόμος του 2023 καταγράφει την πρακτική εφαρμογή της διαδικασίας που απορρέει από τον Τύπο Α, τις συνέπειες που θα υποστεί ο ενυπόθηκος δανειστής σε περίπτωση μη συμμόρφωσης με την δέσμευση του, καθώς επίσης και την εξουσία που αποδίδεται στον Διευθυντή του Τμήματος Κτηματολογίου και Χωρομετρίας για να προχωρήσει στη μεταβίβαση του ακινήτου επ’ ονόματι του αγοραστή κατά την προσκόμιση δεόντως συμπληρωμένου, υπογεγραμμένου και σφραγισμένου Τύπου Β.

Η εισαγωγή του Τύπου Α και της σχετικής προς τούτο διαδικασίας επιδιώκει να επιφέρει την εκ των προτέρων διασφάλιση και προστασία συμφερόντων. Τα όσα έχουν εισαχθεί λειτουργούν ως ασφαλιστική δικλείδα προς όφελος όλων των εμπλεκόμενων μερών και κυρίως του αγοραστή, καταγράφοντας ακριβώς τις ενέργειες που απαιτούνται από πλευράς πωλητή και/ή αγοραστή για σκοπούς τήρησης της παράλληλης δέσμευσης του ενυπόθηκου δανειστή για εξάλειψη της επιβαρυντικής υποθήκης, καθώς και τις διαδικασίες/συνέπειες που μπορούν να τύχουν εφαρμογής σε περίπτωση παράλειψης του ενυπόθηκου δανειστή να τηρήσει την δέσμευση του.

Η πρακτική που απορρέει από τους Τύπους Α και Β διασφαλίζει ότι η ελεύθερη μεταβίβαση υποθηκευμένου ακινήτου σε αγοραστή θα εκτελείται μόλις αυτός εκπληρώσει τις συμβατικές του υποχρεώσεις έναντι του πωλητή.

Τύπος Γ του Παραρτήματος:

Εναλλακτικά, ο Τροποποιητικός Νόμος του 2023 επιτρέπει την κατάθεση σύμβασης διά της συμπερίληψης του Τύπου Γ, μέσω του οποίου ο Αγοραστής ουσιαστικά αναγνωρίζει την ύπαρξη επιβαρυντικής υποθήκης που επηρεάζει το προς πώληση ακίνητο και διαβεβαιώνει ότι επιθυμεί να προχωρήσει στην κατάθεση της σύμβασης χωρίς αυτή να συνοδεύεται από τον Τύπο Α του Παραρτήματος.

Ο Τύπος Γ δεν επιδιώκει να διασφαλίσει τα δικαιώματα του αγοραστή στον ίδιο βαθμό που επιδιώκει ο Τύπος Α. Κατ’ ακρίβεια, ο Τύπος Γ παρακάμπτει την όλη διαδικασία και πρακτική που απορρέει από τον Τύπο Α.

Παρά ταύτα, δεν μπορεί να παραγνωριστεί ότι ο Τύπος Γ επίσης συνεισφέρει προς την εκ των προτέρων διαφύλαξη των συμφερόντων του αγοραστή, παρέχοντας την δυνατότητα σε αυτόν να λάβει έγκαιρα γνώση για την ύπαρξη επιβαρυντικής υποθήκης που επηρεάζει το προς πώληση ακίνητο, αλλά και να επιβεβαιώσει ότι είναι πρόθυμος να προχωρήσει στην κατάθεση σύμβασης χωρίς τη χρήση του Τύπου Α.

Η εισαγωγή των Τύπων Α, Β και Γ του Παραρτήματος αναμφίβολα συνιστά θετική εξέλιξη αφού θέτει σε εφαρμογή μια καινούργια πρακτική που επιδιώκει να διασφαλίσει τη διαδικασία αγοράς και μεταβίβασης ακίνητης ιδιοκτησίας. Με στόχο την επίλυση ενός σοβαρού προβλήματος που παρουσιάζεται τα τελευταία χρόνια, οι Τύποι Α, Β και Γ στοχεύουν στην εκ των προτέρων καλύτερη ενημέρωση και διασφάλιση των συμφερόντων του αγοραστή, ο οποίος, ενώ έχει εκπληρώσει πλήρως τις συμβατικές τους υποχρεώσεις έναντι του πωλητή, έχει απέναντι του ένα πωλητή ο οποίος αδυνατεί να μεταβιβάσει λόγω της ύπαρξης εμπράγματου βάρους.

Η καλύτερη ενημέρωση των εμπλεκόμενων μερών και η χωρίς περιπλοκές ολοκλήρωση κτηματικών συναλλαγών προσφέρει στην ενδυνάμωση της αγοράς ακινήτων, ενώ παράλληλα εμπνέει περισσότερη εμπιστοσύνη σε σχέση με το νομοθετικό πλαίσιο που διέπει την όλη διαδικασία σε περιπτώσεις που το προς πώληση ακίνητο επιβαρύνεται με υποθήκη.

Πέραν, όμως, από τα θετικά στοιχεία που απορρέουν από την εισαγωγή των Τύπων Α, Β και Γ του Παραρτήματος, κρίνουμε σκόπιμο όπως παραθέσουμε τα ακόλουθα σχόλια, τα οποία ίσως να αποκαλύπτουν την ανάγκη για καλύτερη διατύπωση των προαναφερθέντων Τύπων και διευκρίνηση της όλης αυτής νέας διαδικασίας που θέτει σε εφαρμογή ο Τροποιητικός Νόμος του 2023:

(i) Οι πρόσθετες διατυπώσεις που εισάγονται διά του Τροποποιητικού Νόμου του 2023 δεν αφορούν αποκλειστικά τις περιπτώσεις που το ακίνητο βαρύνεται μόνο με ήδη κατατεθειμένη υποθήκη. Κατ’ ακρίβεια, ο Τροποποιητικός Νόμος του 2023 προνοεί ρητά ότι οι εν λόγω πρόσθετες διατυπώσεις αφορούν επίσης περιπτώσεις που το ακίνητο βαρύνεται μόνο και με ήδη κατατεθειμένη σύμβαση. Αυτό, όμως, δεν φαίνεται να αντικατοπτρίζεται από το λεκτικό των Τύπων Α, Β και Γ, οι οποίοι ασχολούνται αποκλειστικά με την περίπτωση ήδη κατατεθειμένης υποθήκης, χωρίς να περιέχουν οποιαδήποτε απολύτως αναφορά σε σχέση με ήδη κατατεθειμένη σύμβαση.

(ii) Οι Τύποι Α, Β και Γ αναφέρονται μόνο σε πωλητή και αγοραστή. Αυτό συνεπάγεται ότι οι συγκεκριμένοι Τύποι τυγχάνουν εφαρμογής μόνο σε περιπτώσεις που αφορούν αγοραπωλησία ακίνητης ιδιοκτησίας. Τέτοια προσέγγιση, όμως, δεν συνάδει με το άρθρο 2 του Βασικού Νόμου και συγκεκριμένα την ερμηνεία του όρου «σύμβαση» η οποία συμπεριλαμβάνει διαφόρων ειδών συμβάσεις, όπως για παράδειγμα συμβάσεις εκχώρησης, διανομής και ανταλλαγής.

(iii) Οι Τύποι Α, Β και Γ ζητούν να καταγραφεί η περιγραφή της αγορασθείσας μονάδας που ανεγέρθηκε και/ή θα ανεγερθεί επί του Ακινήτου. Η διατύπωση των εν λόγω Τύπων δεν φαίνεται να συνάδει με περιπτώσεις που η σύμβαση δεν αφορά την αγορά κάποιας μονάδας, αλλά την αγορά ενός χωραφιού ή οικοπέδου.

(iv) H δέσμευση του ενυπόθηκου δανειστή που παρέχεται διά των Τύπων Α και Β παρέχεται υπό την αίρεση καταβολής 95% της αξίας του συμβολαίου σε προκαθορισμένο καταθετικό λογαριασμό. Αυτό, όμως, σημαίνει ότι ο ενυπόθηκος δανειστής δεν υποχρεούται να εξαλείψει την υποθήκη, έστω και αν ολόκληρη η αξία αυτής έχει κατατεθεί στον ενδεδειγμένο καταθετικό λογαριασμό, εκτός και αν πρώτα κατατεθεί το 95% της αξίας του συμβολαίου στον εν λόγω λογαριασμό, ποσό το οποίο μπορεί και να υπερβαίνει την όλη αξία της υποθήκης.

(v) Οι Τύποι Α, Β και Γ αφορούν περιπτώσεις που η ακίνητη ιδιοκτησία, η οποία αποτελεί αντικείμενο της σύμβασης, επηρεάζεται από ήδη κατατεθειμένη υποθήκη. Τέτοια διατύπωση, όμως, δεν συνάδει με περιπτώσεις που το αντικείμενο προς πώληση είναι τμήμα ακινήτου, το οποίο τμήμα δεν σχετίζεται με ήδη υπάρχουσα υποθήκη η οποία αφορά άλλο συνιδιοκτήτη και συγκεκριμένα άλλο τμήμα του ακινήτου που δεν αποτελεί αντικείμενο της πώλησης.

Τα ζητήματα που εγείρονται διά των πιο πάνω σχολιασμών αναμένεται ότι θα διευκρινιστούν και θα τύχουν αντιμετώπισης με την πάροδο του χρόνου. Ο Τροποποιητικός Νόμος του 2023 είναι πολύ πρόσφατος, με την πρακτική εφαρμογή και χρήση της όλης διαδικασίας που αφορά τους Τύπους Α, Β και Γ να μην μπορεί να αξιολογηθεί δεόντως στο παρόν στάδιο.

Σύμφωνα με ενημέρωση που έχουμε λάβει από το Τμήμα Κτηματολογίου και Χωρομετρίας, αναμένεται ότι οι λειτουργοί των Επαρχιακών Κτηματολογικών Γραφείων θα εφοδιάζονται συνεχώς με καθοδηγητικές οδηγίες και εγκυκλίους, με σκοπό την καλύτερη ενημέρωση του κοινού ως προς τις νέες πρακτικές που έχουν εισαχθεί διά των Τύπων Α, Β και Γ, καθώς και την ορθή εφαρμογή αυτών, με σκοπό την επίτευξη των στόχων που προάγει ο Τροποποιητικός Νόμος του 2023.

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A Testament to Seamless Cooperation in Cross Border Litigation

Posted on | by Paschalis Paschali

Two of our litigation partners Andrew Demetriou and Theo Demetriou working with the legal and technical teams of our clients the Electricity Authority of Cyprus and our colleagues from France (initially Quinn Emmanuel and latterly White & Case), Kami Haeri and Alexandre Kiabski were successful in reversing an injunction issued ex parte against the cashing of a bank guarantee before the Paris Commercial Court. The matter required seamless and efficient cooperation between our client, ourselves and our French colleagues in order to achieve this excellent result.

Images of Paris skyline


The initial and possibly most important aspect was to pick the right colleagues in France to work with. This was done by using our previous experience in such cases and researching the experience of the law firms involved in the particular type of litigation. Once the lawyers were selected and conflicts were cleared quick and effective communication and action ensured that our client’s achieved their commercial and strategic objectives.