Generally, the litigant winning a legal battle is entitled to enjoy the fruits of his success through the execution of the judgement or of the order of the Court issued in his favour without any obstacles, proof of respect for the validity and efficiency of the administration of justice. The filing of an appeal does not operate as a stay of execution but only the Court, in exceptional cases, may exercise its discretion to suspend the execution of the judgment upon terms. George Coucounis explains how this is relevant to eviction from a property.
The prospects of success of the appeal are of limited importance and the stay of execution may be achieved after balancing two conditions which are the litigant’s right to have the judgment executed and the effectiveness of the right to appeal so that in the event it succeeds, not to be without any value. The filing of an application with reference to the aforesaid legal principles in a general and vague manner without any documentation can bring no result, likewise the attachment of the notice of appeal without any specification of the reasons leading to its success. The financial difficulties of a judgment debtor are not considered a valid reason for granting the stay.
Moreover, when an eviction order is issued, the Court has no jurisdiction to suspend further its execution after the expiration of the period of the stay or even to cancel a writ of possession of premises. The Rent Control Law gives discretionary power to the Court when issuing a judgment or an order in accordance with the reasons specified for an eviction to suspend the execution of the judgment or to postpone the date of the delivery of possession for a period not exceeding one year, unless the parties agreed otherwise. However, even in such a case, the Court imposes conditions upon the tenant to pay every amount he legally owes or any other amount which may become payable, such as payment of rents in arrear or the means profits until delivery of possession of the premises.
Wherever the Court issued an eviction order and granted a stay of execution upon terms, non compliance with the terms automatically causes the stay not to be valid. Normally, the terms are related to the payment of the amounts due and therefore, a stay cannot be granted since the debtor will not be able to pay. This fact shows the lack of respect towards the judgment of the Court and bad faith on behalf of the applicant in the process of his application. Such behaviour can also be proven by the delay in the filing of the application for the stay pending an appeal. A real interest can only be shown by filing the application immediately after the appeal and paying the amounts due.
A tenant cannot seriously argue that he has prospects to succeed in his appeal in order to secure the granting of the stay to remain in the premises without paying the rents in arrear or the means profits for its use. The owner has every to right to claim execution of the judgment for finality reasons and for obtaining possession of his premises. Even if the tenant succeeds in his appeal and have the order of eviction set aside, he will have at least the legal possession of the premises and the right to claim its physical possession and/or damages. Otherwise, the owner will remain without remedy since he will lose both the use of the premises and the amounts due.
The interest of the owner supersedes unless exceptional reasons are shown to the Court proving that it is fair and just for the tenant to remain in possession of the premises, complying with the terms imposed, pending the outcome of his appeal. According to the authorities, stay of execution when an appeal is pending will not be granted unless it can be shown that irreparable mischief may be done by refusing it.
George Coucounis is an experienced lawyer practicing in Larnaca, Cyprus.
Educated at University College (London) and Thessaloniki University (Greece), George is fluent in English and has been practicing law in Cyprus since 1982.