North Cyprus legal advice Aug 2009In: Advice|Legal Advice 9 Sep 2009
1 Transferring Deeds > This really depends on the actual property itself. If the property is a new construction, the builder will generally not agree to transfer the title deeds until the construction is complete and the builder has been paid in full. Although transfer is, technically, possible before the construction is complete, builders will generally not carry out transfer of title at that point because this puts them in a weaker position if the purchaser then, after taking title, defaults on a payment. If the property is on a complex of properties, it may not be possible to transfer title, even if the construction is complete, if separate individual title deeds have not yet been issued for the individual properties on the complex. Obtaining the separate title deeds is usually the responsibility of the vendor under the terms of the Contract. It can be a lengthy process as the application has to pass through a number of public offices. It is usually only completed after all of the construction work is fully complete and the construction has been inspected by the planning authorities and received the ‘final approval’. Obtaining final approval can take a few months from the completion of the construction work, and obtaining the separate title deeds can then take a few months thereafter. It is sometimes possible, if some of the properties on the site are complete, but others are not to obtain a ‘partial final approval’ so that the completed properties can receive their ‘final approval’ without the need to wait for the whole site to be completed. It is sometimes also possible for the vendor to transfer a ‘shared title deed’ while waiting for the separate title deeds to be issued. A shared title deed is good title – it does not in any way mean that you do not have ownership of your property – it is just that you own a share of the freehold of the whole site, such share corresponding to the area of the site which your property occupies. Once you receive a shared title deed, eventually, when the separate individual title deeds are issued, the separate individual title deed for your plot will be registered in your name. However, it is not always possible or practical to transfer a shared title. The first problem is the calculation of the share. If the site consists of a large number of properties or if the properties are of varying sizes/types e.g. a mixture of apartments and villas or with different internal areas and numbers of bedrooms, the shares will have to be calculated according to the exact meter square area of the property over the total meter square area of all buildings on the site. Subsequent changes are extremely difficult, so an incorrect calculation resulting in an incorrect share being transferred could cause very severe problems. In addition, once you own a share of the freehold, the Vendor may require a power of attorney from you as he will require your signature as a ‘co-owner’ of the site to complete the process for obtaining the separate title deeds and in order to transfer the other shares to the other purchasers. For these reasons, Vendors usually tend to prefer to wait until all of the formalities concerning final approval and separate title deeds are fully completed before transferring title to avoid any such complications.” 2 Property Developers Behind Schedule If this is the case, then it is difficult to allege that the vendor is in breach of Contract and, therefore, to terminate the Contract and take legal action to recover the money paid and compensation unless you can find some other grounds on which you can argue that the builder is in breach of Contract. If the payment schedule in your Contract is stage based and the relevant stage has been completed and the vendor is not in breach of Contract entitling you to terminate the Contract and therefore not perform your contractual obligation to pay, then you have to make this payment. Otherwise, you will be in breach of Contract yourself. If you are able to establish that the builder is in breach of Contract, you can commence litigation against him. As a guide, litigation of this type would usually take around 1 ½ years to reach trial. The claim would be for a full refund of the price paid, plus compensation for all losses and damages suffered by you as a result, including, for example, costs which you have incurred in carrying out work to the property yourself, loss of rental income when the property was not completed on the contractual completion date, the difference between the price agreed for the property and the market value of a similar property, legal fees, stamp duty and other expenses. First, a legal notice would be sent to the vendor officially terminating the Contract. Then a simple statement of claim would be prepared and filed together with an ex-parte application for an injunction over the property to prevent the vendor/landowner from selling, transferring or otherwise encumbering it and to provide security for your claims. The defendant would then file his defence and eventually a date for trial will be given. In terms of legal costs, I would expect most lawyers to quote fees of around £2000 and upwards for litigation of this type. If your case is successful, the court will usually order the other party to pay your costs, however, the amount awarded does not always cover the total cost and you will be responsible for paying the rest costs. With regards to investigating the financial position of the vendor, unfortunately, credit checks and other financial checks similar to those carried out in the UK are not possible in the TRNC. The Kibris newspaper regularly publishes lists of names of those who have written out cheques which have been dishonoured.” 3 Making a will in Northern Cyprus Making a will is very easy to do and ensures that all your belongings will be shared between the people of your choice. An important point that should be noted is that if you die intestate (i.e. without leaving a Will) your spouse will not automatically inherit your estate, if there are surviving children (in which case a surviving spouse will only receive a 1/6th share and the remaining 5/6th will go to any surviving children) or other specified relatives. A will prepared in the UK does not automatically cover your estate here, so you will need to have a separate one prepared. However, it is possible, if you leave a will in the UK covering your property in Northern Cyprus, in the event of your death, to complete the probate work in the UK and then, once the Grant of Probate has been issued in the UK, to apply to the courts here for the Grant of Probate to be re-sealed and re-validated for use in the TRNC so that the terms of the Grant of Probate and the will can be applied to the estate here. However, this can be a lengthy process and the UK Grant of Probate must be obtained and certified by the TRNC consulate in London together with various other original documents. The simplest way to ensure that your assets are protected and to avoid doubt about the validity of the will is to prepare and sign your will with a lawyer in the TRNC and lodge it with the Probate Registrar at the District Court. This will should cover just your property in the TRNC and should be separate to any other wills you may have made in any other country covering your property in that country. TRNC Law, for a will to be valid, the testator (the person making the Will) must be over 18 and of sound mind. The will has to be signed at the end by the testator in the presence of two witnesses, who must be present at the same time, and these witnesses must attest the will. If the will consists of more than one sheet of paper, each sheet must be signed or initialled by the testator and the witnesses. It is good practice to lodge a copy of the will with the Probate Registrar at the local District Court. We do this as standard procedure because this reduces the risk of anyone contesting the will in the future on the ground that it was a forgery or that the relevant formalities had not been complied with. The original Will is stamped and filed at Court and you will receive copies with an official receipt. Our fees for preparing a will here, including the lodging of the documents in Court including the necessary Court stamps is £125 per will.” 4 Making a will in Northern Cyprus (2) “Clauses in wills about a wish to be cremated or buried are really only to make your personal wishes known to your loved ones and beneficiaries so that they can ensure that these wishes are complied with. The main essence of the will is really the disposal of any property interests, money and personal effects which you have in the TRNC. It is not essential to change this part of the will – the terms relating to the disposal of your property will still remain valid. You could write a separate letter to your loved ones telling them whether you would like to be flown to the UK and be cremated there or whether you would like to be buried here instead. If you feel, however, that you would like the will to be completely accurate, you would have to re-do the will and state your wishes in the new will. The procedure/cost will be as above under question 3. The Probate Registrar at the court will not accept the registration of a Codicil to amend an existing will, so for that reason the previous will has to be revoked and the new will registered in its place.” 5 Builders 5 year Warranty on property in North Cyprus “Without having seen your Contract of Sale and without knowing the nature of the defects, it is difficult for me to say whether or not such defects would be covered by the wording of the warranty in your Contract or not. Assuming that your Contract covers the specific defects which you have, I would recommend that you initially request that your lawyer sends the vendor a legal notice by registered post detailing the defects, pointing out that he is obliged to rectify these defects under the terms of the Contract requesting that he rectifies the defects within a given period of time (say 14 days, depending on the nature of the defects and how long it would reasonably take for them to be rectified). If, despite receiving this legal notice, he fails to rectify the defects, your only option will be to consider taking legal action against him for breach of Contract to claim compensation for the cost of having to resolve these defects yourself. You will have to prove that these were defects and not normal wear and tear, that they are covered by the terms of the Contract and you would only be able to recover reasonable costs involved in repairing them. The difficulty is that with minor defects, it is often the case that the costs involved in litigation outweigh the cost of rectifying the defects and this deters people from taking litigation. The letter from the lawyer may be enough to persuade the builder to complete the work. Many pressure groups have called on the Government to make changes to the current legislation to introduce a ‘Government backed’ or ‘publicly funded’ guarantee scheme, similar to the NHBC guarantees offered in the UK, so that guarantees offered by builders are backed if the builder fails to comply with his obligations. However, this is not in operation yet, so at the moment, guarantees offered by builders are private contractual agreements between the parties.” 6 Paying for a transformer “This is something which, unfortunately, we are seeing more and more often. Many vendors are claiming that they are in a position where they have to pay amounts which are either unexpectedly high or unforeseen and claim that the Electricity Board does not make its requirements with regards to infrastructure or the costs for this known at the outset and are trying to push this additional cost on to purchasers. If your Contract does not put an obligation on you to pay this cost, you are not obliged to do so and are entitled to refuse to do so. If your vendor refuses to transfer title deeds to you until you pay, the vendor will be in breach of Contract. Most contracts put an obligation on the vendor to transfer title deeds within a given period of time from notification by the purchaser to do so. If he fails to do so, he will be in breach, entitling you to commence litigation. In such a case, our claim would be for a return of money paid under the Contract plus compensation for all losses and damages suffered by you as a result of this breach. Unfortunately, under the current system, we would not be able to obtain an order from the court compelling the vendor to transfer title, only to return the money paid for the property plus compensation for loss, unless an out of court settlement is reached under which the vendor drops his claim for payment of this money and agrees to transfer title. ************** Due to the sheer numbers of 1egal question asked this month regarding law in Northern Cyprus, we have not been able to answer every question. Answers to some of the questions we received have already been covered in previous months answers so make sure you have a good look through the archives below. She can be contacted via email info@nmplegal.com, Related articles on Lincguide you may also be interested in:
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1 Response to North Cyprus legal advice Aug 2009
Living in Northern Cyprus - North Cyprus Legal advice (Sep/Oct 2009) | Living in Northern Cyprus - Lincguide
October 13th, 2009 at 12:55 pm
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