Letter to the office of the Attorney General

Ο Γενικός Εισαγγελέας της Δημοκρατίας

Polina Efthivoulou
Counsel of the Republic
Law Office of the Republic of Cyprus
1403 Nicosia
Cyprus
+357 22889242
pefthivoulou@law.gov.cy

19th May 2011

Dear Ms Efthivoulou,

Double Selling Fraud. Section 303a Criminal Code

Thank you for the meeting on the 21st January 2011 where we discussed, amongst other issues, the double selling fraud by my developer of our property. During our meeting you advised me that you were going to raise the issue again with the Attorney General. I am writing to you today for the results of that meeting and for final clarification on criminal law concerning fraudulent dealings in immovable property belonging to another.

Criminal Code section 303A.

(1) Any person who, with intent to defraud, deals in immovable property belonging to another is guilty of a felony and is liable to imprisonment for seven years.

(2) For the purposes of the present section a person shall be deemed to be dealing in immovable property where

(a) [that person] Sells to another, or rents to another, or mortgages to another or encumbers in any way, or makes available for use by another immovable property, or

(b) advertises or otherwise promotes the sale or renting out or mortgaging or charging in any way to another of immovable property or the use thereof by another, or

(c) concludes an agreement for the sale to another, or the renting out to another, or the mortgaging to another, or the charging in any way to the benefit of another, or the use by another of immovable property, or

(d) accepts the immovable property which is the object of the dealing as this is defined in the present subsection.

Competition and Consumer Protection Service

I am copying this letter to Christos Solomonides Director of the Competition and Consumer Protection Service (“the CCP Service”) so as to encourage inter agency co-operation to protect consumers interest. The CCP Service is the competent government authority responsible for the enforcement of the consumer protection laws aiming at safeguarding consumer interests. It deals with subject matters such as unfair commercial practices, unfair terms in consumer contracts, misleading and comparative advertising, etc.

I understand that when the competent authority becomes aware of any infringement of Directive 2005/29/EC and the Cyprus Law 103 (I) /2007 which transposes it, it must, as soon as possible, take all the necessary enforcement measures to bring about the prohibition or cessation of the infringement committed by any supplier of goods or provider of services. It’s powers are far reaching including to apply to the Court for the issuing of a prohibitory or mandatory order, including an interim order, or to impose an administrative fine with regard to transgressions of consumer protection legislation.

This is to say that they will take court action on our behalf if this is required.

Private Criminal Prosecution

As you know our contract is still at the Land Registry deposited for specific performance and our money is in the developers bank since 2005. Before completion of the property in 2006 the developer sold the same property to another at a higher price who still occupy the house. You may recall that this was first brought to your attention late 2007 and in November 2008 you replied that the file had been studied and that it had been ascertained that no criminal offence has been committed. My family was left with little choice but to pay for a private criminal prosecution.

At the private criminal prosecution we presented evidence satisfying all of the essential facts including our contract in the Land Registry, our house unlawfully occupied and legal precedent that a contract in the Land Registry secures ones right as beneficial owner. The accused gave no evidence choosing to remain silent as is their right, but in a shocking conclusion (see Cyprus Mail attached by email) the judge without hearing a rebuttal seemingly went against her own Prima Facie decision, sided with the developer and occupant and acquitted them of all charges in January 2011. I have attached (By email only) my lawyer’s final submission and the judges ruling.

I believe any fair and reasonable jurisdiction would see the selling of the same property twice as a criminal fraud. It is grossly unfair for the buyer to be put on the very long and protracted journey towards remedy in the civil courts which is both costly and time-consuming while in contrast the developer enjoys your money to further his own business. Despite being filed in 2006 our civil case is not due for hearing till the end of this year. It will be argued that this is in breach of article 30 of the constitution. The Republic cares little that my family lives in rented accommodation with our lives in limbo.

In my complaint to the newly formed CCP Service I am requesting an inquiry and hope that they not only champion our appeal but reimburse our legal costs for the private criminal prosecution. We satisfied the Prima Facie requirements of the case proven by the judges interim decision. Clearly then the state should have proceeded with this prosecution in the public interest.

I don’t believe the above-mentioned Law is legally defective but cannot understand the Republics reluctance to implement it in our case. If our case doesn’t satisfy the elements for prosecution then what possible scenario would? I hope the law was not introduced to protect Greek property from Turkish occupation only.

False Advertising

When buying property in Cyprus I like everyone else believed that our contract in the Land Registry secured our rights and protected our interests and that only by mutual agreement or a court order could our rights be removed. Had we have known differently we would have not bought in Cyprus.

In addressing the title deeds issue in July 2009 Mr Neoclis Sylikiotis, Minister of the Interior stated:-

It must also become clear that the ownership status of a buyer-owner of immovable property in Cyprus is definitely secured and cannot be challenged, as long as the buyer-owner has submitted the buying-contract to the Department of Lands and Surveys.”

This rhetoric is repeated by every estate agent, lawyer and developer in the property industry all of whom believe and promote that once your contract is in the Land Registry your rights are secured. Here are two examples:-

By having the purchase contract deposited at the L.R.O. The buyer not only secures his interest in the property but he also prevents the owner of land/vendor from transferring the property to a third party without his knowledge.”

From the brochure of the Pittadjis Law Firm of Paralimni.
The Lawyers who sold our house to another without our knowledge.

From the minute your contract of sale is registered at the land registry department the property is officially yours and you can sell your property the next minute.”

From our developers promotional material.

Requests for action

I put many questions to you in January which instead of answering you were going to put before the Attorney General. I respectfully seek clarification on the following for my family and for the public interest.

Firstly, our private criminal prosecution is set for judicial review at the Supreme Court. I understand that this may take a while. Can you please confirm what action the Attorney General has taken to expedite this process in light of the serious effect on my family, the property industry and its reputation abroad.

Secondly, as the law stands today, how many times can a property developer sell the same house before it becomes a criminal offence? And how much money can the developer keep from each buyer? In our case the same house was sold twice and the developer kept all our money paid (some 50% of the house price).

Finally, could you please let me know what lessons have been learnt and what provisions have been put in place to see this does not happen again?

I understand that under Article 29 of the Cyprus Constitution I should be due a response from you within 30 days. I thank you for your attention and eagerly await your response.

Yours Sincerely

Cornelius O’Dwyer

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CC:-

Mr Petros Clerides
Attorney General of the Republic
Law Office of the Republic of Cyprus
1403 Nicosia
Cyprus
Τel.: +35722889115, Fax.: +35722665080
att.gen@law.gov.cy

My Legal Representation in Cyprus
Yiannos G. Georgiades
GEORGIADES & MYLONAS
2, Ayios Pavlos & Kadmos Street
Wisdom Tower, 3rd Floor
1105 Nicosia, P.O.Box 24144, 1701 Nicosia
Tel: +357 22819292 Fax: +357 22778444
yiannos.georgiades@gmadvocates.com

Mr Christos Solomonides
Director of the Competition
and Consumer Protection Service
Ministry of Commerce, Industry and Tourism of Cyprus
CY-1421 Nicosia, CYPRUS
Tel: +357 22867100 Fax: +357 22375120
conservice@mcit.gov.cy

Mr Neoklis Sylikiotis
Minister of Interior
Dimostheni Severi ave
1453 Nicosia
Tel: +357 22867600 Fax: +357 22676709
dktorides@moi.gov.cy
minister@moi.gov.cy

Mr Christos Christophides
Director of the President’s Office and Deputy Government Spokesman
TEL: +357 22867431, +357 22867408
FAX: +357 22304300, +357 22660173
christophides.chr@presidency.gov.cy

Mr Matthew Kidd – High Commissioner:
Ms Zoe Woodward – Property Officer
British High Commission
Alexander Pallis Street (PO Box 21978)
1587 Nicosia
Cyprus
Matthew.Kidd@fco.gov.uk
Zoe.Woodward@fco.gov.uk

Viviane Reding
Vice President, Commissioner for Justice
DG Justice
European Commission
Brussels B-1049
Belgium
FAX : +32 2 299.92.01
viviane.reding@ec.europa.eu

Denis O’Hare.
Cyprus Property Action Group.
denis.ohare@cyprus-property-action-group.net

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