In order for a court to be able to judge and decide on a claim of a right to an immovable property the presence of all necessary parties is required. The failure to include a necessary party deprives them of the right to be informed about the process and to have their position heard, rendering the judicial measure ineffective.

In such a case, the court is obliged to establish the fact, to note the absence of the necessary party and dismisses the action.

Even when a necessary party is included in the action, but is not served and the summons expires, they are considered absent. The issue is not procedural but fundamental, since it is impossible to order the annulment of the registration of immovable property without first making affected owners aware of the judicial proceedings.

The cases are numerous, especially between related people between whom transfers of immovable property are made and annulment of the registration subsequently requested, either due to fraud, false representations or lack of authorisation. Since the transfers are interconnected, each is incidental to the other and therefore the people involved are necessary parties.

In C.A.184/2019 heard by the Court of Appeal, dated January 14, the plaintiff appealed the first-instance decision that dismissed his lawsuit, because it considered that not all the necessary parties were before it. Thus, the issues raised could not be decided in a fair and effective manner between all interested parties.

Specifically, the plaintiff’s position was that the administrator sold and transferred three disputed pieces of land belonging to the estate of a relative of his to a buyer, who was also defendant, and that the sale and transfer were made in violation of the Administration and Inheritance Law and the rights of the administrator, without the authorization and knowledge of the deceased’s heirs and without the permission of the court.

He brought various claims, including an order annulling the transfers of the three properties to the buyer and, alternatively, compensation for damage caused to the estate of the deceased.

During the hearing, it was found that the administrator of the deceased’s estate had closed the administration by submitting final accounts. At the stage of final addresses, the administrator and the buyer argued that the action could not succeed in any way since the necessary parties, namely the other heirs of the deceased, were not present before the court.

The court of first instance ruled that possible issuance of the order requested for the administrator would essentially pave the way for the annulment of all his acts, resulting in an old administration, within the framework of which the distribution of a large estate took place and which has been closed, to be reopened, with all the consequences that this entails for the heirs and without them having been given the opportunity to participate in the process and express their views.

Therefore, the court considered that the plaintiff’s claims and positions, namely that no permission or authorisation was obtained from the heirs for the transfers that were made and that the heirs were deceived, remained in limbo.

The Court of Appeal, referring to the authority of ‘Agrotou and other’, said that the issue of joining all necessary parties must be raised in a timely manner and immediately after the filling of the Statement of Claim. However, it did not set any inviolable, rigid rule and the court of first instance correctly explained that there was no testimony or evidence before it regarding the heirs of the deceased or their heirs.

It concluded that it is within the discretion of the court to make the necessary modifications as to the parties, in order to enable the effective adjudication of all issues in dispute, but the choice of the defendants in an action is a right which essentially belongs to the plaintiff. In actions having as their object immovable property, all interested parties must be joined as parties, otherwise the whole proceeding is invalid.

George Coucounis is a lawyer specialising in Immovable Property Law, based in Larnaca. E-mail: [email protected], tel: 24818288