Lawyers Conference

09 October 2009

Pia Bella Hotel

Presented by:            Hasan Sönmezer, T.R.N.C. Bar Council President

                                    Feyzi Hansel, T.R.N.C. Bar Council Secretary                                   

Guest Speaker:          Ilkay Sertay, Kyrenia District Principal Judge 

Translator:                 Advocate Dervişe Çerkez 

The meeting was opened by Hasan Sönmezer with a brief summary for the Press under the headings: 

This is the first of a series of conferences and will concentrate of Immovable Property and Contracts of Sale. 

Each district has it’s own Bar Council and these are linked to the TRNC Bar Council which is a professional association, whose duties include: 

Hasan started by giving a few examples of cases he had heard while was a Judge. 

1.    A traffic accident plaintiff incurred damage to his car and was compensated by his Insurance Company and the car was repaired.  After 5 years there was a problem with the car’s gear box and he went to Court for compensation.

2.    A neighbour killed his neighbour’s chicken. The chicken owner sued his neighbour claiming that a chicken has chicks twice a year and, if 12 chicks lived, that would be 6 chickens and 6 roosters and one year later those 6 x 6 would each have 12 chicks and so on. The chicken owner wanted compensation for his total loss.

3.    In the Public Sector a school had a vacancy for Head Master. Two people applied for the position and one was appointed. The other sued saying it was a wrongful placemen. He won as the Court agreed that the position had been taken from him. The next morning he went to the school and took possession of the Head Master’s office thinking he was entitled to do so as he had won his Court case.  Unfortunately, the Judge does not appoint school Head Masters. 

In each of these cases the Judgements did not accept: 

Case 1       Applicant could not claim for unforeseeable damages.

Case 2       Claimant had high expectations that Court would se his side

Case 3       Claimant thought Court had more power. 

Therefore all three were disappointed. 

Hasan told the audience that the public do not have a basic knowledge of law. 

End of Press overview. 

Hasan Sönmener 

Thank you all for coming here today and I hope you have all received the copies of some laws in English which are being handed out as these are being enforced as they are in English.  Some laws under British Rule are still in place, particularly Immovable Property. 

Today’s conference would be in 2 parts – the first being Immovable Property registered under titled owners in accordance with law 224.  According to this law whoever the land is registered to it is generally accepted that they own everything on that land.

What can a land owner do?       He can sell and transfer it

                                                He an gift it and transfer it

                                                He can exchange it for properties

                                                He can mortgage it.

                                                He can rent it. 

What can 3rd parties do?          Those that receive Judgements of monetary value can place a Memorandum on property owned against.

                                               That Memorandum can have the property sold to generate a monetary value

                                                Those owned money via a Mortgage can ask for the property to be sold to generate value. 

Now moving into sales contracts. 

What is a contract of sale?                   When more than one person, in return for considered actions have the intention to agree on same matter. 

How can it be legal and binding?          Look at CAP 149. There is no specific way that contracts for property are defined from this law 

I believe there is a slight contradiction, i.e. rental agreements must be in writing. With regards to sales it is apparent that contracts can be verbal but rentals must be agreed in a written contract. 

Later on there was a law passed by TRNC government which stated that purchasers who wished to register their contact must do so in writing to the District Land Office.  How can verbal agreements be registered. 

If a contact is in writing in relation to verbal agreements before signing they cannot be used in Court.  Therefore we request the public, if your intentions are not included in the contract do not sign – only when you are satisfied should you sign. Do not believe contractors. 

Also for contracts of sale to be drafted it is not necessary for seller to be landowner, but we ask: 

·        If landowner is not a party do not sign contracts

·        Parties of contracts can act in person or by means of a Power of Attorney

·        Contracts made by Power of Attorney the POA does not have personal liability. 

Therefore it’s not the words of the POA you should believe.  You should obtain enough legal knowledge before you sign. 

Where contract is breached by seller the Courts, by subject matter of property, do not have authority to register property in the buyers name. This is how the law is. 

CAP 232 Specific Performance Law – when a contract is not abided to the Court has the right to transfer ownership.  However, this law is very restrictive and not enforceable at present. Therefore, if contracts are breached there isn’t any authority to ensure title will transfer. 

The rights of victim - would be difference in market value of property.

If you purchased for £50,000 and it was to be transferred in future and then not abided to, what would be taken into consideration? The current market value of the property which could be £75,000 making your compensation £25,000. 

Whilst claiming, often the party puts a claim on sum of claim. If you buy for £50,000 and, if in the contract the person breaching should give you £5000 that’s all you will get – not more.  Whilst, if there as no figure quoted for compensation you would get the difference between the purchase price and the current market value, which could give you more compensation. 

On the 17th April 2007 the Estate agents law was passed in relation to registration of contracts. It fails to meet buyers’ needs. It may stop Vendor from taking a mortgage but it does not allow property to be transferred.  If there was a mortgage before you registered that claim is above yours.  Therefore any contract does not lift right of person who has loaned the money and is not an obstacle to stop property being sold.  Whether the matter is brought to the Courts’ attention afterwards, being aware of these facts that courts acts. 

Therefore the justice you expect is not always what can happen. 

Among our audience is Judge Ilkay Sertay who will advise what you should do. 

Ilkay Sertay 

During my personal life I do not know anyone who has as much knowledge as me except for Hasan Sönmener. 

During my one month in Kyrenia Court I have come to see that nearly half is foreign property purchasers and I am very upset.  Some do not know who the land owner is, they are without knowledge of the financial position of their constructor, they are without knowledge of who they have signed contracts with, and they are without knowledge if person has built before. 

Therefore these people have signed and paid their money. Now at this point in time you have either received nothing at all or you are in litigation 

I do not want to give an opinion but I want to let you know about this. I do not want to know. 

If you are able to take title you must immediately. For £3,000, £50000 do not lose time on a few cracked tiles. Because developer may go under, bank may attack to get mortgage money, land may be sold by bank.  As a result, and I regret, you may get nothing at all.  Seriously consider what Hasan has said and, if you can, take title. 

IF YOU ARE ABLE TO TAKE TITLE DO SO IMMEDIATELY. 

End of first session. 

The second session was given by Feyzi Hansel 

I will discuss proposals for change and I want to identify what the problems are and become aware of why there was laughter when Hasan mentioned disciplinary. 

Of course, we re aware of previous problems and we are now taking it seriously since Hasan Zonmezer took over.  Previously some things may have been omitted, we need your help. The Bar Council brings a way forward.  It doesn’t matter if you are a Citizen or not.  If you are happy to live here then we would like to help. 

However, whilst doing this everyone must be aware of restrictions on us, which we have collected under four headings: 

One of our main problems is CAP 32 Specific Performance Law due to the limitation of time restrictions. 

What we can do?  Estate Agency law provides some kind of security.  This security is not up to level and doesn’t solve remedy for Specific Performance.  Therefore the Bar Council is preparing proposals for changes to legislation (this was received by a round of applause from the audience).  You can be assured, if you are worried, so are we.  So with your help we can pass legislation. Of course we wish to point out that, if it is passed, it will not be retrospective. 

Therefore our contact details are: 

Telephone        0392 227 0841

Fax                   0392 227 0840

e-mail               kktcbarolarbirligi@gmail.com 

We are quite restricted today on time for questions, we will answer them all via e-mail. 

Solution for problem is not purely by legislation, we need to delve into why there are problems, i.e. selling project with no building licences.  Selling expectations of what we are buying. 

Honesty is a virtue. Not everyone is honest. All your expectations must be in written contract. 

With off-plan there is a long period of time between selling and completion.  Who will guarantee that period of time.  Also seller may not be contractor so we have problems because of Specific Performance Law. We can see that some contractors do not have experience or know-how.  How can we be sure ? 

Another is Permission to Purchase (PTP).  Everyone is aware of problem with permissions due to long process and long delay and some are using this to their advantage.  So we must get rid of this. 

Unfortunately building is taking place without proper permissions. This does not give excuse to start before they receive permission. Due to long process they are taking risks. 

Finally, I would like to mention regulating quality of building.  We re going to be putting forward a proposal that a pool is put together to guarantee investors.  This will provide guarantee for contractors and buyers. It will be called the Immovable Property Guarantee Fund.  The proposed procedure for the PTP transactions, contract signed for it to be binding and valid.  Persons making undertaking under the Fund would have to transfer the property to the fund and the rest of procedure would take place after. It would be guaranteed by Fund, if vendor got into financial difficulty he could get loan from fund.

We are open to ideas from you as this is just an idea.  This will not be retrospective. 

Our advice would be to take title – minimize your risk.

End of session.

Q&A 

Kim                  You advised us to take title. How, when the refuse to transfer?

A                      If you are able to but don’t put forward that there are 4 tiles mission.

Ismet               Can we do a test on Specific Performance Law?

A                      It can’t be tested due to restriction on limitation of time 

Colin                I represent the BRS. When people come ignorant of law how can they make sure they are protected?

A                      We would be happy to have a 1-2-1 wit you.  We are happy to prepare handbooks.

The meeting closed.