Another try with the Ministry of Energy, Commerce, Industry and Tourism

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1326

Vassilis Sergiou
Commerce and Industry Officer
Ministry of Energy, Commerce,
Industry and Tourism
6, Andreas Araouzos street,
CY-1421, Nicosia,
Cyprus
Tel: +357 22867191 Fax: +357 22375120
vsergiou@mcit.gov.cy

16th April 2015

RE: The double selling of our house

Dear Ms Sergiou,
Thank you for your recent correspondence where you expressed willingness to reopen an investigation into our complaint. We have copied this letter to your counterpart agencies in the UK and will write to them directly in the hope that you can work together collectively towards a resolution for our case and better protection for others.

Kindly note, that since submitting our complaint in June 2011, we have moved address and it took a while for your letter to reach us.

Since 2011 we’ve proceeded with court action, we are awaiting an appeal and your assistance is still desperately required. So far, we have found no solace in the legal system, the courts have been viciously uneven, the property developer remains unpunished and continues to advertise the same false claims today.

Dangerously, one of our cases outlined below, made precedent at the Supreme Court and has now exposed consumers to a high risk that is unique to Cyprus and which needs addressing. In brief, a contract deposited at the Land Registry, no longer means you are the beneficial owner of that property. It is no longer a criminal offence for the developer to sell that same property over and over again. This is now a civil issue and the buyer must first prove to the civil courts any claim over the property. This, as our plight shows, will take over a decade to resolve and all that time with the buyers funds in the developers bank account.

Following the format of your attached complaint form.
A. Consumer Information
Mr Cornelius O’Dwyer
[home address]

Β. Company or Trader Information against whom the complaint is lodged
Christoforos Karayiannas & Son Ltd
Karayiannas Shopping Center
1st Floor, Office No.1
152 Griva Digeni
5281 Paralimni-Cyprus
Telephone: +357 23743553
Fax: +357 23730793
Email : info@karayiannas.com.cy

C. Description of the complaint
(Please write a clear description of the complaint. Attach additional pages, if necessary)

We bought a house from the above company to be built with a delivery date of July 2006. We deposited our sales contract in the Land Registry for specific performance. The company unlawfully disregarded that contract and kept all our money. The company immediately sold the same house at a higher price to another family without informing them of our existence.

False Advertising

When buying property in Cyprus, we, like everyone else, believed that the deposit of our contract in the Land Registry secured our rights and protected our interests. This is still the message from every estate agent, lawyer and developer in the industry. Here are some examples specific to our case:-
From Christoforos Karayiannas and Son Ltd’s own promotional material

“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 the brochure of the Pittadjis Law Firm of Paralimni. The lawyers involved in selling our house to another without our knowledge

“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”

Dangerously, this rhetoric also comes from the highest levels of government. Mr Neoclis Sylikiotis,Minister of the Interior stated in July 2009.

“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”

Had we known that our developer can sell our house to another and keep our money despite our contract in the Land Registry, then we would never have bought in Cyprus.

D. Legal basis of the complaint
(If possible, please indicate what, in your opinion, is the legal basis of the complaint and which legislative provisions are breached)

  • 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.
  • Αριθμός 92(Ι) του 2000 ΝΟΜΟΣ ΠΡΟΝΟΩΝ ΓΙΑ ΤΟΝ ΕΛΕΓΧΟ ΤΩΝ ΠΑΡΑΠΛΑΝΗΤΙΚΩΝ ΚΑΙ
    ΣΥΓΚΡΙΤΙΚΩΝ ΔΙΑΦΗΜΙΣΕΩΝ ΚΑΙ ΣΥΝΑΦΗ ΘΕΜΑΤΑ
    (National Legislation, Law 92(I) of 2000 on misleading advertising)
  • Directive 93/13/EEC on unfair terms in consumer contracts

E. Background of the complaint
(Please describe chronologically, if possible, the events and facts of the case which led to this complaint. Attach additional pages, if necessary)

The double selling of our house
In August 2005 we bought a house from Christoforos Karayiannas and Son Ltd. It was an ‘off plan’ property with a delivery date of July 2006. Our contract was deposited in the Land Registry for specific performance. In February 2006 we disagreed with the developers over changes they had made to the plans which were in breach of contract. At this stage, the property was midway through construction and we had paid €113,000 in payments. Even with the changes to the plans, which ruined the privacy of our garden, we continued as contracted and kept up stage payments. However, with increasing animosity, the developers claimed that we breached our contract and they stated that they will keep all our money as compensation. In February 2007 we discovered that our house had been resold at a higher price to another British
family who had already taken up residence.

F. Communications and other actions
(Please provide information about any communication between you and the company/trader and/or third parties e.g. other government authorities, lawyer etc. as well as any actions undertaken either by you or other parties)

A civil case for breach of contract was started in 2006 (Case No. 365/2006).
When we discovered our house was occupied by another family we wrote to them but unfortunately, got no response. We followed up with a letter from our lawyer on the 17th May 2007 and a reply came back stating that they had bought in good faith after they were told a previous contract had been cancelled.
Between June 2007 and January 2009 our lawyer wrote many letters to the Police, the Attorney General and to The Ministry of Justice urging them all to take action against both the developer and the occupant under section 303a of the criminal code above.
Finally, in November 2008 we got a short response from the Attorney General stating that no crime has been committed and that they will take no action. When pressed for clarification by the Cyprus Mail, Paulina Evthyvoulou–Evthymiou, the Counsel for the Republic said:

“This is a civil case and not a matter for the Attorney General,” she said. “If he had a judgement from a civil case that he was the owner, it would be different. The civil case is unresolved. I don’t have an owner and I’m not in a position to decide who the owner is,”

G. Have you proceeded or do you plan to proceed to any court action relating to the complaint?

Criminal case of fraud
With little choice, we proceeded with a Private Criminal Prosecution against the developer and the occupant of the house. (case 1912/09 D.C. Famagusta).

At Larnaca District Court, the judge accepted evidence from a Department of Lands and Surveys official who confirmed our contract had been duly signed and lodged with the Land Registry for Specific Performance. The court heard evidence that we made stage payments of €113,000 until the developer refused to accept any further payment. The judge accepted that the property was resold to another without our consent to cancel the contract or applying for a court order to withdraw the contract from the Land Registry.

The judge ruled that there was a case to answer but controversially after the defendants chose not to give any verbal or written testimony the judge proceeded to find them not guilty, acquitted them from all charges and ordered us to pay all costs. The ruling stated that although we submitted a sales contract to the Land Registry, that did not mean, we automatically and in perpetuity had become the ‘owners’ of the residence and that the civil courts must first decide who the beneficial owner of a property is.

Therefore, upon that judgement the situation remained unchanged, our money was still with the developer and our house still occupied. We appealed the verdict and have attached our lawyers submissions to the Supreme Court which includes the relevant case law, arguments and grounds for appeal.

Disturbingly, on the 23/10/2013 the Supreme Court ruled upholding the lower courts decision in full, acquitting the developers and the occupant of all criminal charges.

Civil case for breach of contract
On the 11/09/2012 we finally heard the judgement for the civil case at Larnaca District Court. In summary, the judge ruled that we did not breach our contract and that the developers had unlawfully cancelled it and unlawfully retained our money. It was ruled that the house was sold again without our knowledge. However, in another atrocious decision, the court failed to award us any damages or rent for all this time! Again, we are appealing this judgement and this is where your help is needed most.

Summary

We consider that any fair and reasonable jurisdiction would prohibit in all circumstances the double selling of the same property and would prosecute this act as a criminal fraud. However, you can see from the above that as the civil and criminal cases were dealt with in the wrong order, the developer has escaped criminal prosecution. It is now proved, that we did not breach our contract and the house was unlawfully sold and the developer had unlawfully keep our money. Therefore, it would seem the police failed to conduct a thorough investigation and the Attorney General was wrong to defer the matter to the civil courts. In our private criminal case, it was ruled that there was already sufficient prima facie evidence of a crime, therefore the State should have pursued this criminal prosecution and we should be compensated for our costs.

We are baffled though, by the Supreme Courts decision which suggests that criminal law is subordinate to civil law, whereas the long-standing position has been the reverse. There was precedent that a contract in the land registry shows the buyer as the benificial owner however in those cases, the victim (buyer) was Cypriot. We have no doubt that in all our cases the leniency shown by the courts is due to the developers social standing. Unfortunately, the press is now awash with corruption allegations and examples of foreigners poor treatment in the courts.

In addition to our property cases, I (Cornelius O’Dwyer) have been assaulted twice by the father and son developers, in the second attack I was hospitalised for 6 days and it took 6 months for full recovery. Again, in both instances the developers escaped a custodial sentence.

Request for action

Since 2008 we have been protesting outside property shows in the UK and government offices both here and in Cyprus. We’ve been highlighting our case and warning others of the pitfalls of buying off plan property. In doing so, we have faced continuous allegations of defamation and have battled to defend our freedom of speech. Now with the Supreme Court decision in hand, the property industry needs clarification from you on a foreigner’s rights with a contract in the Land Registry. As well as help in our case we would like to know what safeguards will be put in place to prevent this happening again.

For a decade now we have been treated unfairly by all levels of the Cypriot judiciary. This whole situation and the time it is taking to resolve, has had a terrible detrimental effect on our family life. During this process, we have spent an enormous amount of money in legal fees while living in rented accommodation. Throughout our plight we have had no help from any government authority or industry body. We first wrote to you in 2011 before the above cases came to court. In recent months, press reports and court judgements have reaffirmed that Christoforos Karayiannas and Son are financially unstable and dishonest in their dealings.

In view of everything above, please liaise with our lawyer Yiannos Georgiades to help in our appeal and our pursuit for compensation. We need your full weight behind us.

Yours Sincerely
Mr and Mrs O’Dwyer

 

H. Supporting documents
(Please attach to this form one copy of the supporting documents in your possession, e.g. sales contract, credit agreement, correspondence, receipts. Please do not send any originals.)

List of documents attached:
1. Letter from Ministry of Energy, Commerce, Industry and Tourism: 17 December 2014
2. Complaint to the Competition and Consumer Protection Service: 28 June 2011
3. Copy of the sales contract that was signed by all parties on 23 August 2005
4. Print of http://www.karayiannas.com.cy/faqs.php The property developers FAQ page
5. Letter to Ms McDonald 17 May 2007
6. Letter from Pittadjis Law Firm 30 May 2007
7. Letter from complainant’s lawyer 08 August 2007
8. Letter to Attorney General 23 January 2008
9. Letter to Attorney General 14 May 2008
10. Letter to Attorney General 02 September 2008
11. Letter from Attorney General 22 October 2008
12. Letter from Attorney General 26 November 2008
13. Letter from Attorney General 15 January 2009
14. Cyprus Mail – “Man in house dispute finds no relief from Attorney General” – 21/12/2008
15. Lawyers submission for case 1912_2009
16. Judgement case 1912_2009
17. Lawyers submission to Supreme Court
18. Supreme Court decision dated 23_10_2013
19. Cyprus Mail – “Limassol court ‘too lenient’ due to defendants’ social standing” – 4/10/2014
20. Cyprus Mail – “Cyprus’ top 50 tax laggards” – 9/02/2015
21. Supreme Court – Karayiannas vs Ministry of Finance – 20 March 2015

 

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