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Legal challenge to arbitary PTP decisions on pre74 TC title land

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erolz


Joined: 17/11/2008
Posts: 3456

Message Posted:
09/05/2011 05:12

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Message 1 of 27 in Discussion

I think there is a way forward here that would almost certainly force real change in the TRNC on this. It would not be easy or quick or cheap but it could work.



Basically it would require a TC with pre74 title land to sue the TRNC for denying them their right to sell their own legaly owned land by artbitarily placing PTP restrictions on non TRNC citizen purchasers without transprently showing valid just reason to deny such a sale.



If and when this was refused by TRNC courts it would then have to be taken to ECHR as a breech of said TC rights to 'enjoy' their property, including the right to sell it without unjustifiable and non transparent obstructions from the TRNC.



Just starting the action may force change within the TRNC but that is not assured of course.



Thoughts from 'fellow armchair legal experts' welcome, espesically you Elko



misunderstood


Joined: 08/04/2011
Posts: 1004

Message Posted:
09/05/2011 07:08

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Message 2 of 27 in Discussion

In theory, absolutely right. but, and you knew there would be a but. First you must find someone, young and healthy enough to take on such an epic journey through legaldom. They must also have enough surplus money to be able to afford this fight. What we really need is some philanthropic person to fund just one case for the unfortunate vicitm and then I am sure there will be takers.



Believe me when I tell you, taking on the system is not an easy task at the time of life most victims find themselves.



Of course, if Pauline had pre 74 title, she would not sit back and take such an arbritary decision but then even she can see that she might not live to enjoy the end result.



erolz


Joined: 17/11/2008
Posts: 3456

Message Posted:
09/05/2011 07:21

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Message 3 of 27 in Discussion

Yes it would take someone willing to do it, someone in pocession of pre 74 TC title. Idealy someone who has already had a sale of their property fall through as a result of refusal of ptp without transparent and justifyable cause given. Money could be raised by a consortium of affected people possibly and other interested parties. Personally I believe that the current non transparent and seemingly arbitary system of ptp on pre 74 tc title is damaging to TC in general and not just to those non TRNC citizens that are directly affected as buyers.



Forcing change is never easy, espcially using international courts, I fully accept that reality.



misunderstood


Joined: 08/04/2011
Posts: 1004

Message Posted:
09/05/2011 07:46

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Message 4 of 27 in Discussion

Both Mr Denktas and Mr Talat (former Presidents) advised this course of action. Fine if the money can be found, most of us have already been 'milked' to the limit, but if such a consortium, or even one very rich person ready and willing to help, came forward, so I suspect would the person needed to create the precedent/



TRNC needs this sort of 'tough love'.



erolz


Joined: 17/11/2008
Posts: 3456

Message Posted:
09/05/2011 08:22

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Message 5 of 27 in Discussion

What about estate agents that deal exclusively or mainly in pre74 non GC title properties. They might be tappable for some funds, their business must be being affect by these appreantly arbitary changes ?



Tenakoutou



Joined: 27/07/2009
Posts: 4110

Message Posted:
09/05/2011 08:49

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Message 6 of 27 in Discussion

Foreigners should face reality!



How can you actually own any property while you are not granted permanent residence?



You are merely on an annual, or bi-annual, 'visitor' status and can be deported for any number of reasons, on a whim. Therefore, whether, or not, you hold freehold title to your property, you are deemed by the government to be a temporary resident.



Until citizenship rights are conferred on you, you are effectively denied secure and 'cast iron' ownership of ANY property in TRNC!



Those foreigners crowing, or celebrating, about having been granted PTP, or receiving their 'Kochans', need to realise that these might well turn out to be merely temporary concessions!



erolz


Joined: 17/11/2008
Posts: 3456

Message Posted:
09/05/2011 09:26

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Message 7 of 27 in Discussion

Whilst I take your point Tenakoutou ownership and residency rights are not the same thing.



Refusal to grant residence, or even vistor visas, which could in theroy be removed by the TRNC from non citizens, would affect a an owners ability to 'enjoy' their property through use but would not change its ownership. You would still legaly own it if you had PTP and it was undiputed title pre74. You could rent it, you could sell it, you could let someone live in it for free.



I could buy a property in NZ, but that does not grant me automatic rights to permanent residency in NZ let alone NZ citizenship.



Tenakoutou



Joined: 27/07/2009
Posts: 4110

Message Posted:
09/05/2011 12:21

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Message 8 of 27 in Discussion

erolz/Msg 7:



In NZ, we have hard and fast rules and standards concerning residency, citizenship, property acquisition and ownership, all of which are absolutely clear - not so in TRNC!



Our legal system was drawn up to protect people, not deceive them!



Also, usually, if one is deported from Cyprus, one is placed on a 'black list' and consequently unable to return, even to settle one's affairs and sell one's property, let alone 'enjoy' it!



elko2



Joined: 24/07/2007
Posts: 4400

Message Posted:
09/05/2011 12:50

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Message 9 of 27 in Discussion

Erol,

Quite often I am in the field making good innings, so calling me an armchair lawyer was not very nice



The course suggested is not costly because it only involves the High Administrative Court with no appeal So you go to YİM (YŁksek İdare Mahkemesi) i.e. High Administrative Court and from there to ECHR.



I can see two problems with this. the attyorney for the government is likely to argue on two points:

1. The plaintiff i.e. the land owner has no genuine interest in the matter (Meşru menfaatı yoktur). He can sell it to others just as well. It is the person who was refused permission to buy who should go to court. It is the Buyer who is refused permission and therefore her should apply, not the seller. The effect on the seller is indirect and there could be a good reason for refusal and it should only be divulged in a case brought by the buyer, not the seller.



2. Application to YİM should be made within 75 days when the permission was refused or became known to the applicant or his representative. Quite often this is a very serious drawback and it is strictly adhered to.

ismet



erolz


Joined: 17/11/2008
Posts: 3456

Message Posted:
09/05/2011 13:33

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Message 10 of 27 in Discussion

Elko I meant 'armchair' in regards to you only in the sense that alexanfer graham bell was an 'armchair inventor' ;)



Thanks for you points. Some thoughts.



It strikes me that point 1 is just want we need. We WANT the government to refuse to accept our arguments. The worst possible outcome would be if they accepted the charge and granted PtP but only for that single case. THen we would have to keep bringing cases repeatedly. We want refusal so we can go to ECHR, for they can force generic legislative change.



point 2 - problem only in so far as how long it would take to get started should we be able to find a suitable plantiff.



As to the arguments in point 1 at the ECHR, surely the right to sell your property means a right to be able to sell it to any offer from someone willing to pay the asking price and being forced to reject such offers as have ben made is a restriction on that right ?



[cont]



Tenakoutou



Joined: 27/07/2009
Posts: 4110

Message Posted:
09/05/2011 13:36

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Message 11 of 27 in Discussion

So, the foreign buyer must wait indefinitely to be cheerfully refused PTP on, probably, the flimsiest pretext, but is required to make application to YIM within 75 days?



For instance, from our pre '74 Turkish Title property, which we were refused PTP for, on the grounds of proximity to the military, it is impossible to see any military installation, or activity related to it!



What a deceitful and shameful confidence trick has been covertly perpetrated on us by a TRNC government, who themselves are bleating to the international community about their unfair treatment and isolation!



I also am given to understand that any appeal has no chance of success, whatsoever, except to further line the pockets of the lying advocates who have raised a worried sick foreigner's hopes.



erolz


Joined: 17/11/2008
Posts: 3456

Message Posted:
09/05/2011 13:37

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Message 12 of 27 in Discussion

The reason why I chose seller and not buyer is that with my seriously armchair knoweldge of the ECHR, it seem to me that the right to enjoy property must include the right to sell it and any restriction on your ability to do so based on arbitary and non transparent decision of the council of minsiters is an unfair restriction of that right.



I am not aware of an ECHR of right that defines the right of a buyer to be able to freely buy any property they want in a 'country' (ininverted commas because at ECHR putable party would be Turkey not TRNC)they are not citizens off free of non transparent and arbitary restrictions placed by council of minsiters.



If the case at ECHR is stronger with buyer, then lets find one of those



erolz


Joined: 17/11/2008
Posts: 3456

Message Posted:
09/05/2011 13:51

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Message 13 of 27 in Discussion

Tenakoutou I understand your frustration and disgust at how you have been treated by the TRNC and understand why reiterating your views on the TRNC. I do really. Now I know this thread is little more than twittering by people with no background in such legal matters (elko excepted) but at the core of my intent in creating it is a 'fantasy' that we could start something that led to actual change for people who have sufferd like you have. I know the chance of really doing this in gazillions to one but the intent is there and sincere none the less. Could I respectfuly ask that you try and keep on that topic ? If not thats fine, I do understand but no harm in asking is there ?



Tenakoutou



Joined: 27/07/2009
Posts: 4110

Message Posted:
09/05/2011 15:26

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Message 14 of 27 in Discussion

erolz/msg 13: 'Could I respectfuly ask that you try and keep on that topic ?'



As far as I'm concerned, I did keep 'on topic' by warning anyone brave/wealthy enough to undertake litigation proceedings against the government when I wrote in message 11:



'I also am given to understand that any appeal has no chance of success, whatsoever, except to further line the pockets of the lying advocates who have raised a worried sick foreigner's hopes.'



erolz


Joined: 17/11/2008
Posts: 3456

Message Posted:
09/05/2011 16:18

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Message 15 of 27 in Discussion

Tenakoutou I think your quote above "any appeal has no chance of success" refers to an appeal in the TRNC against the refusal of the council of minsters to grant you ptp and is probaly a correct assesment.



What I am 'musing' is a very different approach entirely, which is not appeal against such a decision in the TRNC. I suggest that a SELLER sues the TRNC for obstructing their human right to 'enjoy' their property (including the right to sell it). The hope would be that the TRNC courts did indeed reject the such a case, for if they did it then creates a legal opportunity to have the case considered by the ECHR - the european court of human rights, whihc is a legal body that is nothing to do with the TRNC. No only does this body indepedant of the TRNC get to rule on the issue, but if it finds in favour of the plantiff not only does it force the TRNC to compensate the indivdual who brought the claim



[cont]



erolz


Joined: 17/11/2008
Posts: 3456

Message Posted:
09/05/2011 16:25

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Message 16 of 27 in Discussion

it also has the power and duty and means to enforce a judgment that demands the TRNC alos take necessary steps to ensure that no on else suffer a similar loss of their rights in the future.



That is, if you can get the case to the ECHR (by first exhausting remdirs in the TRNC and not geting satisfaction) and can get the ECHR to rule in your favour doing so will lead to a generic soloution to ALL who suffer under this problem.



Now I am proposing / musing that a seller takes this route, not a buyer who has been refused ptp. However if they get no satisfaction it the TRNC, goto the ECHR and the ECHR rules in their favour the TRNC will be obliged to find a way that no future sellers right to freely sell property they legaly own is blocked by an arbitary decision of the council of ministers. They will still be able to refuse ptp where there is real legitmate expetional circumstance to do so in the interest of national security or a few other aytpical reasons

[cont]



erolz


Joined: 17/11/2008
Posts: 3456

Message Posted:
09/05/2011 16:31

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Message 17 of 27 in Discussion

but they will not be able to do so arbitarily without such a valid reason. In effect the ECHR will define what is valid reason ptp can be refused AND it will make sure that the TRNC obides by its determination.



So even though the indivdual who brings the case is a seller , if the case is won at ECHR, then the remedy that the ECHR will impose on the TRNC (in addition to compsenation tio the indivdual seller) to ensure it does not happen to others sellers will ALSO affect ALL buyers in such a position currently.



I am not sure I have explained it very well, but I am sure that what I am suggesting is very different to what you were advised would be a waste of time and money (an appeal to TRNC that they reconsider their ptp decision in your indivdual case and only in that case)



Molly


Joined: 30/08/2008
Posts: 299

Message Posted:
10/05/2011 10:23

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Message 18 of 27 in Discussion

Elko, if reason No. 2 is not an issue, what are your thoughts on those refused because of proximity to military bases? Surely that's also pure discrimination?



Bearing in mind the 75 day limit, a quick response would be appreciated!!!



erolz


Joined: 17/11/2008
Posts: 3456

Message Posted:
10/05/2011 11:34

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Message 19 of 27 in Discussion

I do not think I explained my suggestion very well. I am not suggesting any challenge to any given ptp decision of the council of ministers.



What I am suggesting is that a seller argues that their right to sell their own property is being restrictd unfairly by the arbitary use of the PtP system.

http://echr.coe.int/NR/rdonlyres/97564258-437D-4FFD-A54D-2766DE255CCA/0/DG2ENHRHAND102007.pdf

" In order to comply with the test of proportionality between the collective interest and the interests of an individual, interference should be conducted in such a manner which is not arbitrary and which is in accordance with the law."



and



"Interference with the right to peaceful enjoyment of possessions shall be allowed only if:

it is prescribed by law,

it is in the public interest, and

it is necessary in a democratic society.

All three conditions must be fulfilled cumulatively. Should only one of them not be met, there will have been a violation of the Convention."



erolz


Joined: 17/11/2008
Posts: 3456

Message Posted:
10/05/2011 11:40

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Message 20 of 27 in Discussion

The objective of looking at if ptp and the apprently arbitary way it is being used is a breach under ECHR laws, is that the ECHR has the jurisdiction and means and power to FORCE the adminstration here to ammend the laws so that they comply with ECHR requirments.

Any ruling on an indivdual case by a seller that their right to property have been infringe, were it to be upheld by the ECHR would result in a ruling that requires not only compensation for that given indivdual but also for the state involved to make changes to law or put procesdures in place to ensure it does not happen to others.



Tenakoutou



Joined: 27/07/2009
Posts: 4110

Message Posted:
10/05/2011 21:11

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Message 21 of 27 in Discussion

Suing the government, anywhere, would probably get the cheated foreigner nowhere - except deported, who would risk that?



There is no known precedent, either, and no individual, even if prepared to take the chance, is likely be able to bear such crippling litigation costs!



That's most likely the reason it has been a 'non-starter' up to now.



YFred


Joined: 06/05/2009
Posts: 1471

Message Posted:
10/05/2011 21:58

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Message 22 of 27 in Discussion

Is there a law to stop giving a foreigner the land for free. If it is not being purchased surely surely no permission is required.

Is it really that difficult to get round this law?



YFred


Joined: 06/05/2009
Posts: 1471

Message Posted:
10/05/2011 22:00

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Message 23 of 27 in Discussion

For a small fee of course, my services are guaranteed.



philbailey


Joined: 17/01/2011
Posts: 3534

Message Posted:
11/05/2011 01:48

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Message 24 of 27 in Discussion

Clever idea msg 23



Then charge a "maintaince fee "

or ground rent ?



erolz


Joined: 17/11/2008
Posts: 3456

Message Posted:
11/05/2011 03:11

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Message 25 of 27 in Discussion

Msg 21



Well the idea is that the seller does the suing, which could be a TRNC citizen or not. If the person doing the suing was harrased by the TRNC for suing that would only make it quicker and easier to then go to the ECHR.



There is precedent. It was an application to the ECHR by a TC that resulted in the border between North and South being opened. They sued the TRNC / Turkey for an infringment of their right to free assembly on the basis they were not allowed to freely pass into the South. The opening of the border was a result of this, as once the ECHR ruled in their favor the TRNC / Turkey were obliged to make changes necessary to ensure others did not have their rights infringed in a similar manner.



There is also the precedent of those GC that went to the ECHR claimg infringment of their right to enjoy property and various other infringments. This resulted in the creation of the IPC.



[cont]



erolz


Joined: 17/11/2008
Posts: 3456

Message Posted:
11/05/2011 03:19

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Message 26 of 27 in Discussion

There is an issue of cost I accept that. However as the result in won would benefit all future sellers and buyers and not just the indivdual bringing the case there is real potential to create a figthting fund from many interested parties. Nor is taking the case to the ECHR as costly as typical legal action nor as risky. In theory there is no cost for an indivdual to make an application to the ECHR, nor can they suffer costs if they loose their case. Of course to make the best possible application would need legal advice and that would cost, as would exhausting all legal local avenues, which would be a pre requist of making an application to the ECHR. The ECHR is not a 'normal' court. It's whole purpose and design is to allow indivduals to sue states when their rights are infringed. It is designed in the knowledge that indivduals have less resource than states.



The biggest weakness of taking cases to the ECHR is time.



[cont]



erolz


Joined: 17/11/2008
Posts: 3456

Message Posted:
11/05/2011 03:25

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Message 27 of 27 in Discussion

Anyway I am not personaly directly effected by arbitarty PtP decisions, either as a seller or a buyer. My only interest in suggesting this route is that I think the system is unjust and that damages the TRNC in the long run. If I had pre74 property I would be willing to be the ligitgant, should sufficent support be possible to get. However I do not have such property and only someone with pre74 title could do this. If those that are affected, as sellers or buyers, or other interested parties (estate agents, developers and the like) have no interest in the idea than so be it.



Yfred msg32 I do not know but I suspect that any transfer of property deeds from one party to another would be legaly considered a sale, even if no money was to pass hands.



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