TRESPASS of an immovable property is any unlawful entry or damage or interference with any such property by any person, including a co-owner. For a co-owner to establish a claim for trespass by the other he must be actually ousted or dispossessed of the property. This may happen since nowadays many people buy a property jointly with others without making an agreement with regard to the occupation, use and enjoyment of the property. The rule is that each co-owner is entitled to the possession of the whole property in undivided shares, so if one expels the other from the property, or part of it, he commits trespass.
The issue is mainly raised when the co-owners do not cooperate and one ousts the other from the property. In such a case, the ousted coowner is entitled to raise a claim against the other for trespass. The normal measure of damages is the market rental value of the property occupied or used wrongly for the time of the wrong occupation or use by the other. No co-owner can maintain a claim for trespass unless he is actually ousted or dispossessed of the property. The co-owners are considered like tenants in common and have the same rights as if a co-tenant takes possession and leaves the other out.Each co-owner has the right to possess, use and enjoy the commonly owned property in a proper manner so as not to create any obstacles or hinder the other from exercising his rights.
Despite the fact that trespass is actionable per se without having to prove the damage, in the case of co-owners it is to the benefit of the ousted party to claim and prove the actual damage he suffered; otherwise, his claim will be only for the restoration of his proprietary rights infringed and he will be awarded with nominal damages. It is not adequate to prove that trespass was committed but also to adduce evidence with regard to the actual damages suffered. One cannot rely on the fact that because trespass is proved and damages are claimed it will be upon the trespasser to disprove the damages claimed in the action. It is upon the claimant to prove his damages; otherwise he will only be awarded with nominal damages. The solution to a co-owner when he is ousted is to make an application to the Land Registry for the sale of the property in public auction.
By doing so, the jointly owned property will be sold and the co-owners will share the net proceeds, without them having to quarrel. When the property has no separate title deed, this procedure cannot take place since the Land Registry cannot place a property for sale in public auction without a separate title deed. Even the court cannot issue an order for the sale in public auction of the jointly owned property without the existence of a separate title deed. Thus, the remedy to the co-owner of such a property is the restoration of his proprietary rights and damages. People who purchased a property in joint names should regulate their rights in a written agreement with regard to the use and enjoyment of their property. There are a number of ways in which they can regulate their rights, including the peaceful and unobstructed use and enjoyment of their property. It is up to them to regulate the issue on time and not to leave it for later when they may not be on good terms.
George Coucounis is a lawyer specialising in the Immovable Property Law, based in Larnaca, Tel: 24 818288, [email protected], www.coucounislaw.com
