THE ORAMS CASE FAQs



Dear Client,

We would like to inform you of the recent judgement of Court of Appeal of England and Wales dated 19.01.2010 in the matter of Meletis Apostolides v. David Charles Orams & Linda Elizabeth Orams and its implications for property buyers/owners in the Turkish Republic of Northern Cyprus (TRNC).

Facts:

In 2002, David and Linda Orams have purchased land from a third party and constructed a villa on it at Lapta, Kyrenia, TRNC. Mr. and Mrs. Orams are registered as the owners of the property by the TRNC Land Registry.

Meletis Apostolides was the owner of the property before 20.07.1974, before the island was divided into two between north (TRNC) and south (Republic of Cyprus). Mr. Apostolides is the registered owner of the property by the Republic of Cyprus, the south, Land Registry.

Mr. Apostolides has instigated legal action against Mr. and Mrs. Orams, demanding amongst other things, compensation, vacation of "his property" and demolition of the villa situated therein by Mr. and Mrs. Orams. Legal action was instigated at the District Court of Nicosia at the Greek controlled south part of the island, Republic of Cyprus. Mr. and Mrs. Orams, have for good reasons, failed to attend to these proceedings and file appearance in time.

In November, 2004, Mr. Apostolides proceeded to prove his case against Mr. and Mrs. Orams, in the absence of their defence. Mr. and Mrs. Orams have thereafter sought to have this judgment set aside and asked for a leave of the District Court of Nicosia (in the south) to appear and defend. Their application was dismissed. Mr. and Mrs. Orams then appealed to the order made by the District Court to the Court of Appeal in the Republic of Cyprus (the south). Appeal was dismissed and again no opportunity to defend was given. Republic of Cyprus (the south) has no control over TRNC, hence could not enforce the judgment obtained in its District Court in Republic of Cyprus (the south).

Republic of Cyprus (the south) being a member of the EU, Mr. Apostolides has sought to register the judgment in the UK under recent EU regulations which enable enforcement of a judgment of a Court of Law of a member state in any other member state and therefore enable Mr. Apostolides to attach to the UK assets of Mr. and Mrs. Orams. Judgment registration order was made at the Queen's Bench Division of the UK High Court by Master Eyre. Mr. and Mrs. Orams appealed against the registration and argued at the High Court that the judgment should not be registered, primarily for the following reasons:

• Republic of Cyprus, the south, has no effective control at the TRNC where the property in dispute is situated.
• Mr. and Mrs. Orams had no right to defend themselves, when they asked for a leave to defend at the law courts of the Republic of Cyprus, the south. In other words, there was no due process.
• Registration should be set aside due to public policy and current political circumstances in Cyprus, north and south.
  

In September 2006, Justice Jack at the Queen's Bench Division of the UK High Court allowed the appeal in favour of Mr. and Mrs. Orams and setaside the registration of judgments obtained in the Republic of Cyprus (the south), in the UK.

Mr. Apostolides appealed against the High Court's decision at the UK Court of Appeal. Court of Appeal, in turn, referred the case to the European Court of Justice in Luxembourg (ECJ). ECJ dismissed all the arguments made by Mr. and Mrs. Orams and ruled that the only recognized Courts are those of Republic of Cyprus (the south) notwithstanding whether or not the Republic of Cyprus (the south) have effective control in TRNC.

ECJ has ruled that judgments obtained in the Republic of Cyprus, in relation to subject matter arising at TRNC, are enforceable within the EU, even though Republic of Cyprus (the south) has no effective control in TRNC.

Developments after the Final Ruling:

On 19.01.10, the Court of Appeal, following ECJ opinion, has ruled in favour of Mr. Apostolides. In other words, judgment obtained against Mr. and Mrs. Orams in the Republic of Cyprus (the south) can be registered in the UK and attached against those assets owned by Mr. and Mrs. Orams within the UK. Further appeal to the Supreme Court of the UK (previously known as the Appellate Committee of the House of Lords of the United Kingdom) was not permitted.
After the Final Ruling:

• Mr. and Mrs. Orams have applied for a special permission for leave to appeal to the Supreme Court of the U.K. Application is still pending at this moment in time and a decision on this point is awaited within a couple of days. We are constantly monitoring and shall keep you informed. 
• Under the current legislation applicable in the TRNC, like in many other Western states, any building or demolishing is subject to a permit (also known as "planning consent"). Mr. and Mrs. Orams has applied for a permit in order to demolish the villa so that they can comply with the judgment. The authorities have made it clear that they will not allow the demolishing to be carried out. This has created an impossibility in complying with the order. In our opinion, and this impossibility will be a recognized by the UK court as valid grounds for not complying with the order.
• Mr. and Mrs. Orams have made another application at the UK asking for a court declaration that execution of the judgment obtained in Cyprus Republic is partially not enforceable in TRNC. Decision on this point is pending.
• The TRNC has declared that she will indemnify and pay all the compensation and legal costs for and on behalf of Mr. and Mrs. Orams and shall further compensate Mr. and Mrs. Orams for loss of use and enjoyment of their property and/or the current market value of their property.

Implications:


FAQs:


1- Can this judgment affect me in any way if I own an immovable property in TRNC?

a- If the immovable property you own in TRNC was not expropriated by TRNC after 20.07.1974 then the answer is NO.
b- If the immovable property you own in TRNC was expropriated by TRNC after 20.07.0974 then the answer is YES. "Exchange" title and "TMD" are all considered expropriated by TRNC


2- How does the judgment affect me?

Any party who owned a property in TRNC before 20.07.1974 and is still registered as the owner in Republic of Cyprus (the south) may instigate a civil action against the current owner/user in the law courts of the Republic of Cyprus (the south). Thereafter if such an action succeeds then it may be registered under the same EU regulation as invoked in the case of Mr. and Mrs. Orams against UK/EU assets of the current owner/user, if any, such as bank accounts and real property.


3- Can this judgment affect me if I own a property in TRNC subject to 1(b) above but I am NOT an EU citizen?

The EU regulation invoked in the case of Mr. and Mrs. Orams was about registration and enforcement of the judgment against EU assets of the Respondent (Mr. and Mrs. Orams). Therefore, non EU parties having assets in the EU or residing or travelling to the EU are also vulnerable.


4- How does it affect me if I have an asset within the EU?

a- If a judgment is obtained against you/your assets in the law courts of the Republic of Cyprus (the south), then it is enforcable against you both in the Republic of Cyprus (the south) and EU.

b- If you fail to abide by the judgment, then your property (movable or immovable or both) within the UK, can be sold by a court order to satisfy any liquated damages and the compensation or can be subject of the writ of attachment proceedings.

c- If you fail to abide by the judgment that is duly registered in the UK willfully or without a good cause, you may be held in contempt of court.

d- Please note that each case will be decided upon its own merits. "Orams" case however sets a binding precedent for UK cases in so far as registration of judgements are concerned.


5- What if my assets are in any other EU country other than UK?

Judgment can be attached to your assets within the UK. Other EU countries have the right to decide seperately as to whether they will execute such judgments in their own countries depending on the merits of the case in question.


6- What happens if I do not have an asset within the EU?

Then there are no risks as to your assets. However, if you fail to abide by the judgment that is duly registered willfully or without a good cause, you may be held in contempt of court depending on the legislation in force in the member state the judgment is duly registered. In our opinion the fact that the TRNC will not allow compliance will be recognised as a just ground for failure to comply.


7- In the event that I shall face a claim how shall I be notified about it?

The civil action shall be instigated at the law courts of Republic of Cyprus (the south). Writ must be served to you. The person serving it to you must explain, according to the legislation, that you are being summoned to the court. In the case of Mr. and Mrs. Orams the writ served was in Greek language and Mr. and Mrs. Orams have maintained that nobody explained to them what it was.


8- Can I refuse/avoid service?

Your failure to sign for service will not avoid service as the writ can be served by leaving it before you when you are present.

Service has to be made in person or to a family member (spouse or next of kin). Service may also be affected abroad (e.g UK) by the leave of the Court.


9- What to do if I am served?

Contact us immediately. Do not delay. Time is of essence when you are served the writ. There are strict time limits to be complied with.

For example, in Orams, time limits were not complied with initially and the initial judgment made in Cyprus was made in absence of Orams. Nevertheless, it was upheld.

The TRNC is expected to enact new legislation that will make serving this kind of writs on foreign residents or its subjects a criminal offence against the state and the public. In any case, please notify the police immediately.


10- Is it safe/safer to register title in the TRNC to a family members' (husband/wife/children) name?

Liability can be attached to the family members who share the property with you. Please contact us for more viable alternative precautions and advice on trusts instead.


11- What guarantees do I have?

TRNC and Turkish Republic have so far paid considerable amount of compensation to the previous Greek Cypriot owners of the properties over property disputes very much like Mr. and Mrs. Orams'.

All of those claims was paid in full and settled for between the Greek Cypriot Claimant and the TRNC or Turkey. None of these claims had caused any problems to the current owner.

This is state policy in the TRNC and is still valid and applicable in all similar cases.

In our opinion, the TRNC shall soon be in the process of enacting new legislation to offer further protection to the current and future buyers/investors in the TRNC.

We are working with the government authorities and on legislation confirming that:

* all compensation of all kinds payable to the previous Greek Cypriot owner; and

* in the event of vacation of the property, the market value of the property and compensation shall be paid by the TRNC;

* and that the TRNC shall become a party to the case via the Attorney General's Office to defend and conduct the case, as the case may be and meet all court costs and expenses.  


12- Are there any precautions that I may take to avoid/minimise liability?

Yes there are. Our advice varies with each case.

Please seek private and confidential legal advice.

Generally, based on the experience to date, we confirm that the TRNC is the actual payer in all compensation claims. We are working with the government and the NGOs for cross border property cases like the Orams and will endavour to readily provide the most accurate information to our clients.



Yours Sincerely,


Gurkan & Gurkan Advocates and Legal Advisers

26.01.2010