The reach of the Management Committee

A management committee of a jointly owned building may sue and be sued, but does not act as a private prosecutor

The powers of a management committee (MC) are limited to the regulation and management of the affairs of a jointly owned building and as a legal entity it acts on behalf of the owners of the units and is responsible for the enforcement of the regulations provided for in the Immovable Property (Tenure, Registration and Valuation) Law, Cap.224.

Among the powers of the MC are to collect communal charges and pay expenses, to enter into contracts relating to the maintenance and management of the commonly owned property and it may sue and be sued for the primary purpose of recovering any communal charges due. In essence, the MC represents unit owners, so the owners do not personally act or contract themselves. It is the duty of the MC to control, operate, manage and direct the commonly owned property, to secure all necessary services, to maintain and keep it in good condition and working order, and to make improvements.

A question arises as to how far the powers of the MC extend and whether it has authority under the law to act as a private prosecutor, bringing a private prosecution against a person who operates a unit on the commonly owned property for an unauthorised use, such as tourist or short-term accommodation or other use. The provisions of Article 38KF are relevant and provide that the MC may sue and be sued in relation to any matter relating to the commonly owned property, but do not provide that it may act as a private prosecutor and bring a private criminal prosecution.

The issue was addressed by the Supreme Court in the unanimous judgment delivered by Judge T. Economou in C.A.180/2021, dated February 3, wherein the legality of the MC was considered, whether it could institute a criminal case against persons who operated an apartment in a commonly owned building as tourist accommodation. The trial court had considered whether a criminal prosecution by an individual was permitted if they established direct interference with their interests and concluded that such interference was not established and acquitted them.

On appeal by the MC, the Supreme Court raised the question of whether the law which established management committees as legal entities empowered them to institute private criminal cases. It referred to Articles 38KB – 38KH of the law which set out the powers of the MC and pointed out that the said statutory provisions provide that the MC has the power to sue and be sued. No provision gives it any legal standing as a prosecutor. Nor can such power be derived indirectly. The reference in section 38KZ(1) of the law, “to any act necessary for the enforcement of the regulations and the control, operation, management and direction of the commonly owned property” cannot, in any event, be given such a broad interpretation as to cover the possibility of private prosecution in general or prosecution under the Hotels and Tourist Accommodation Law.

The Supreme Court went on to emphasise that the MC is established for the purpose of regulating and managing the affairs of the commonly owned building (article 38KB) and is responsible for enforcing regulations, having the powers specified under the relevant part of the law or the regulations (article 38KF). Its legal standing in court is limited by law to civil actions, passive and active. As a private prosecutor it is not provided for. Nor is it the subject of this case whether it could face a charge.

The Supreme Court, concluded that in this case that it could possibly be inferred that it would be the direct encroachment on the rights of the other owners and not the MC. The MC does not have the rights of the unit owners, but acts for and on behalf of them in the exercise of its powers. The owners would be the affected persons and therefore it dismissed the appeal.

Source https://cyprus-mail.com/2023/02/20/the- … committee/

With thanks George Coucounis is a lawyer practicing in Larnaca and founder of George Coucounis LLC, Advocates & Legal Consultants, info@coucounis.law