178/2005 Federal Taxation Act (381248)
(1ST LAW PUBLICATION)
Rent adjustment on an old necessarily extended commercial
lease of a property belonging to an Israeli Community. In the absence of a relevant
agreement, the adjustment is made by law and is required by the
notification of a written notice to the lessee. Passive legalization of
lessee – State for the continuation of the trial, until the issue is irrevocable
decision, although, during the pending trial, the
Prefectural Self-Governments in all its rights and obligations
State, by virtue of the relevant internal service organization of the N.A.
Five-year statute of limitations for monetary claims under NPDD and incidents
interruption thereof.
DECISION NUMBER 178/2005
DODEKANIS COURT OF APPEALS
Composed by the Judges: Konstantinos Apostolopoulos, President
Appellants, Nikolaos Karadimitriou and Spyridoula Makri-Professor, Appellants and the
Secretary Aikaterini Diakokoliou, clerk of the Court of Appeal
Dodecanese.
He met publicly in his audience in Rhodes on January 14, 2005,
to try the following case:
You called her: ……………………………………….. where
based in Rhodes, legally represented, which appeared in Court
through the attorney-in-fact of Georgiou Filippakos.
Of the petitioner: inactive N.P.D.D. under the firm
"……………….", based in Rhodes, which was presented at
Court through the proxy attorney of Ioannis Karamihalis.
The appellant filed an action at the Single-Member Court of First Instance of Rhodes on 3-12-2001
and with no. exp. 302/14-12-2001 his lawsuit. That Court with the
No. 200/2002 his final decision, which was issued in opposition to the
parties, accepted the action. Against this decision, the defendant appealed to
Court that issued it, addressing the present action from 14-3-2002
and with no. exp. 70/17-3-2003, her appeal, a copy of which she filed
at the Registry of this Court with no. exp. 101/17-3-2003, for
discussion of the one that was legally written on the board was set as admissible, met
postponement referred to at the beginning of this decision.
During the hearing at which the case was heard
legally in turn from the relevant board, their attorneys
parties also developed their claims orally and referred to
written proposals submitted by them.
STUDY THE LITERATURE
THINK AGAINST THE LAW
I. The defendant with no. exp. appeal
of the defendant against no. 200/2002 of the final decision of the Single Member
Court of First Instance of Rhodes, issued during the special procedure followed
for the resolution of lease delivery or performance disputes (articles 648-661
K.Pol.D), was exercised legally and within the deadline {(service of the appellant
decision on 2-28-2003 - filing of appeal on 3-17-2003) see articles 495 par.
1 and 2, 499, 511, 513 par. 1 sec. b, 516 par.1, 517 par.1, 652 par.1
K.Pol.D}. Therefore, legally brought before the competent court
for its adjudication (no. 19 K.Pol.D), it must be formally accepted and
be further investigated as to the admissibility and validity of her reasons (art
533 par. 1 K.Pol.D).
II. (A) With the action of 3-12-2001 (no. exh. cat. 302/2001) before the
Single-member Court of First Instance of Rhodes, the plaintiff ……………………..
claimed that with a contract he concluded on 4-30-1961 with the Greek State,
legally represented by the then ……………………………. ,
leased to it for a period of five years (1-4-1961 to 30-3-1966)
instead of a monthly rent of 1000 dirhams, the property described in it (lawsuit).
property, area 325 sq.m. the ground floor, 325 the first floor and 90 sq.m.
the yard (uncovered area), text on street K. no. .. of the Old Town
Rhodes, in order to be housed in this 10th Primary School of Rhodes, that
after the expiry of the above lease the lease was tacitly extended to date with
rent paid from April 1986 of Dr. 19,000, that from
last adjustment of the rent to the amount of 19,000 drachma which was made on
April 1986 there was a significant increase in the rental value according to
law, that on 6-30-1993 in exercise of its right (based on the provisions
of article 5 par. 2 of Law 813/1978, as replaced by article 1 of
Law 2041/1992 and reformulated by article 71 par. 1 of Law 2065/1992)
communicated to the lessee the State an extrajudicial declaration and invitation by which his
notified that the rent payable is from 7/1 to 11/30/1993 at
amount of 38,000 Dr., from 1-12-1993 to 30-6-1994 in the amount of 127,544 Dr.
and from 1-7-1994 and henceforth in the amount of 217,089 drachmas, that despite this, although
repeatedly harassed the State, it did not pay the adjusted amount
rent law and for this reason he brought against him the action from 2-16-1996 with the
which requested recognition that the legal rent amounts to the above amounts
and to compel it (Government) to pay the above amounts, that the lawsuit
this was rejected as inadmissible by the 244/5-7-2000 decision of the Court of Appeal
Dodecanese for lack of passive legalization of the State with the
reasoning that "from 5-5-1995 onwards only the Prefectural Self-Government
Dodecanese is entitled to be sued regarding the payment or
readjustment of the rents of the properties used for housing
of public elementary schools or other public services, relevant to
their operation, in the event that the previous lessee was the State,
of which she is said to be quasi-universal successor in all
responsibilities that have been transferred to it", that on 11-16-2000 it notified
to the defendant …………………… on 10-11-2000 (no.
exp. cat. 338.2000) her action, in which she requested the same as in the previous one
action against the State, which was urgent and had a place of nuisance as
resulting in the rent adjustment from 1-12-2000 onwards to the amount
of 225,773 drachma, that the plaintiff waives this action (with the
legal document) and that the defendant ………………….
……… , which from 5-5-1995 entered into the above lease relationship as
quasi universal successor of until then lessee …………. , although
the plaintiff repeatedly harassed her, not only did she not pay out of displeasure
statutory adjusted rent but from February 1996 ceased altogether
to pay rents. Following this history, the plaintiff requested: (a) to
recognized that the legal rent (based on its objective value
rental property according to the aforementioned provisions) amounts to 1-7
until 30-11-1993 in the amount of 38,000 drachmas, from 1-12-1993 to 30-6-1994 in the amount
of 127,544 drachmas, from 1-7-1994 to 16-11-2000 in the amount of 217,089 drachmas.
and from 1-12-2001 onwards in the amount of 225,773 drachmas (b) to oblige the
defendant (alternatively and under the provisions on unjust enrichment)
in the payment of these amounts, i.e. a total amount of 17,767,742 drachmas and (c)
to compel the defendant to give her the use of the leased property. (B)
Decision 200/2002 of the above Court was issued for this action
(appellee) which partially accepted the action as substantially sustained and (a)
acknowledged that the monthly rent for the rental property is from 1-7 to
30-11-1993 in the amount of 111.52 EUROS, from 1-12-1993 to 30-6-1994 in the amount of
111.52 EUROS, from 1-12-1993 to 30-6-1994 in the amount of 374.30 EUROS, from
1-7-1994 to 30-11-2000 in the amount of 637.09 EUROS, from 1-12-2000 to 30-5-2002
in the amount of 662.58 EUROS, (b) obliged the defendant to pay to
plaintiff the total amount of 52,142.76 EUROS with the legal interest from
next day when the partial rents were due, (c) obliged her
defendant to pay the plaintiff as rent of the above leased property
the amount of 662.58 EUROS every month from January 2002 to 30-5-2002, (d)
obliged the defendant to assign to the plaintiff the use of the lease
of property, while announcing the decision (as regards its counter-voting provision)
temporarily enforceable. (C) The defendant complains against this decision
its considered appeal for the reasons mentioned therein and requests to
disappear otherwise the appellant is reformed and the action is dismissed.
III. (A) With the new legislative regime and for the old extended ones
compulsorily commercial leases, the adjustment is done contractually in principle
and if there is no such agreement or it is void, automatically based on it
objective value (percentage not lower than 6% of its objective value
rent and for the uncovered areas of 4% per year) once after
after two years and then every year based on the amount of the tariff
of the cost of living, and is required from the notification of the written notice
to the lessee and without the mediation of the court. The lessee who
delays the payment of the above mentioned rent after the written notice
from the date on which the rent is payable, accrues to
overdue or dystropia (no. 597, 599 of the Civil Code and 66 EsNKPolD) and occur
the legal consequences therefrom (AP 804/1997 Hellenic Law 39. 117). (B) In
this case from the documents that the parties legally rely on and
present the following facts are proven: With the from
4-30-1961 private lease agreement the plaintiff ……………….
Rodou, represented by the then President of M.S., leased to Elliniko
…. , legally represented (by virtue of a decision of the Prefecture of Dodecanese)
by the then Financial Commissioner of Rhodes M.L., for a period of five years
(1-4-1961 to 30-3-1966) instead of a monthly rent of 1,000 drachmas a property
property, area 325 sq.m. the ground floor, 325 the first floor and 90 sq.m.
the yard (uncovered area), text on street K. no. .. of the Old Town
Rhodes, in order to be housed in this 10th Primary School of Rhodes. When
the above lease expired, a new lease document was drawn up on 8-5-1967
between the same parties as above with whom its duration was agreed
five-year lease (from 1-4-1966 to 30-3-1971) and a rent of 1,500 drachmas.
After the expiration of the above lease, this lease was tacitly extended as
commercial was subject to the protection of Law 813/1978, as amended
valid today (P.D. 34/1995 "on the codification of provisions of laws re
of commercial leases"), and the monthly rent paid came from
1-1-1983 to 12,000 drachmas and from April 1986 to 19,000 drachmas, an amount which
was determined by decision 132/1986 of the Single Member Court of First Instance of Rhodes. THE
above lease agreement is valid in all respects and the contrary is supported
from the defendant with the 1st ground of appeal (and in particular what was required for her
its validity decision of the Minister of Education and Religious Affairs) are unfounded
and disposable. On 6-30-1993 the plaintiff in exercise of her right (based on
of the provisions of article 5 par. 2 of Law 813/1978, as replaced by
article 1 of Law 2041/1992 and reformulated by article 71 par.1 of
Law 2065/1992) notified the public lessee of the 11-6-1993 extrajudicial statement
and invitation by which, having precisely determined the objective value
of the lease and from there the amount of the lease with a rate of 6% of it
of objective value for the covered and 4% for the uncovered space, of
notified that the rent payable is from 7/1 to 11/30/1993 at
amount of 38,000 Dr., from 1-12-1993 to 30-6-1994 in the amount of 127,544 Dr.
and from 1-7-1994 onwards in the amount of 217,089 drachmas. Notwithstanding this
(Government), although repeatedly harassed by the plaintiff, she did not pay it
rent adjusted by law and for that reason he brought against him the from
16-2-1996 (no. exp. cat. 77/1996) action (which was served on it on 24-4-1996
according to the submitted 1830/24-4-96 performance report of the judge
curator of Athens N.P.), with which he requested recognition that the legal
rent amounts to the above amounts and oblige the State to pay
of these amounts. This lawsuit was rejected as inadmissible with 244/5-7-2000
decision of the Dodecanese Court of Appeal for lack of passive legalization
Public on the grounds that "from 5-5-1995 onwards only …….
…………….. is entitled to be sued in respect of the payment or
readjustment of the rents of the properties used for housing
of public, primary schools or other public services, relevant to
their operation, in the event that the previous lessee was the State,
of which she is said to be quasi-universal successor in all
responsibilities that have been transferred to it". On 11-15-2000 the plaintiff
notified the defendant ……………………….. (see 12827/15-
11-2000 performance report of the bailiff Rhodes A.Z.) the from
10-11-2000 (no. exp. cat. 338/2000) her action in which she requested everything and
in her previous action against the State (which was rejected as inadmissible
with the above decision) that is to recognize that the legal rent
amounts to the above amounts and to the amount of 225,773 from 1-12-2000 onwards
and to compel her to pay those amounts, from this lawsuit
the plaintiff resigned with the lawsuit. The defendant though
the plaintiff repeatedly harassed her, not only did she not pay out of displeasure
statutory adjusted rent but from February 1996 ceased altogether
to pay the current rent of 19,000 dr.
so in distress. For the above proven facts (the
which was also accepted by the appealed decision) no complaint is presented by the
I was calling. Further the appealed decision accepted that the objective value
of the leased property (based on the formula of no. 8 Law 2041/1992, as
reformulated with par. 2 no. 71 of Law 2065/1992 and codified with
no. 8 of P.D. 34/1995) amounts to: of the ground floor (surface area 325 sq.m.) to
20,694,960 drachma, of the first floor (surface area 325 sq.m.) to 22,576,320 drachma of the second floor
of uncovered space (courtyard) surface area 90 sq.m. in 219,793 drachmas. He also accepted that
from the above notification (30-6-1993) of the written statement from 11-6-1993-
of nuisance, the monthly rent was automatically adjusted as follows: From 1-7 to
30-11-1993 in the amount of 111.52 EUROS, from 1-12-1993 to 30-6-1994 in the amount of
374.30 EUROS, from 1-7-1994 to 16-11-2000 in the amount of 637.09 EUROS, from
1-12-2000 to 1-12-2001 in the amount of 662.58 EUROS and from 1-1-2002 to
30-5-2002 in the amount of 662.58 EUROS. To determine the objective
value of the rental property and the calculation of the above adjustments
rent, the appellant does not raise any complaints.
III. (A) To be a party one must have legal capacity
that is, the ability to be subject to rights and obligations (no. 62
K.Pol.D), and this ability is examined ex officio by the Court (no.
73 K.Pol.D). Therefore, any person can be a party independently
of age until his death, the pregnant provided that he shall
born alive as well as any legal entity of a domestic or foreign-private entity
or public law, the legal entities of international law (e.g. ….),
in the case of legal entities, they can be parties even after
solution as long as they are under liquidation (see Nika in Interpretation K.Pol.D Kerameus-
Kondylis-Nikas, article 62 no. 2). Further in accordance with articles 1, 2, 3 and 7
of Law 2456/1920 "On Israeli Communities": In any cities of
……. more than twenty Israeli families reside permanently and
operates Synagogue can be established by B.D/th ……………..
recognized as a Public Law Legal Entity. In every city, town or
village operates a single Israeli Community to which it belongs vs
ownership complete or existing and acquired in the future movable and immovable
her property. Members of the Israeli Community are automatically considered to be everyone
Israelites by religion are those who live permanently in the seat of the Community. The
Community Council validly decides on the sale of mobile and real estate
belonging to the Community as well as the purchase of movable or immovable property
acquired in favor of the Community and in general on all related matters
the interests of the Community. According to no. 2 of n.d. 301/1969 the no. 3
of a.n. 367/1945 "on the reorganization of Israeli Communities"
is replaced as follows: Israeli Communities in the country, which
they do not gather the number required under Article 1 of Law 2456/1920
Israeli families for the recognition of the Community are considered as
lying dormant. The finding that the Community lacks the above
minimum number of families is made under the …………………..
……….. and the declaration of this inactivity by decision of the Minister
of National Education and Religious Affairs, after the opinion of K.I.S. For management
of the affairs and interests of the Community, a 3-member Committee is appointed,
following the proposal of the K.I.S., I exercised all the duties according to no. 1 of the A.N. 367/1945
responsibilities. In the event that a Community was inactive,
wanted to obtain the number required under no. 1 of Law 2456/1920
of families is recognized as in force according to the provisions of this Law.
According to No. 1 of A.N. 367/1945 "..the operation of these Communities
continues according to the provisions of Law 2456/1920 .. their administration
is assigned temporarily and until the effective date of appointments to a 3-member administrative board
Committees, appointed by decision of the Minister of Religious Affairs and thereafter
proposal of the K.I.S., until the election of elected Boards of Directors
these temporary Committees always exercise the rights listed in
No. 7 of Law 2456/1920.." Finally, the provisions of Law 2456/20 (except for no. 23
and 24 thereof) and of A.N. 367/1945 and Law 1657/1951, as they apply
from time to time they are also applied to ……………………. (no. 5
N.D. 301/1969). (B) In this case it was legally established in its city
Rhodes the ………………………………. which is (according to
aforementioned provisions) N.P.D.D. She maintains offices on P. street.
No. . in the Old Town of Rhodes, has real estate in Rhodes which
managed by any legal means through the Management Committee and
submits income tax returns. Since 1970 it has been inactive,
pursuant to decisions 8085/1970 and 13024/1970 of the Minister of National Education
and Religion, because the Israeli family in the city of Rhodes
they fell below twenty. She (………………..) is managed and
is represented judicially and extrajudicially by a Three-member Administrative Committee n
which has been formed into a body (after the decision of the South region
Aegean with no. 9152/28-8-2001) with the following composition: M.R. President, I.X.
Vice President and A.M. Secretary General (see the provided minutes
meeting of the Administrative Committee of Rhodes on 3/9/2001). The same committee
authorized the lawyer Rodos I.K. to conduct the present trial and to
attend the hearing of the adjudicated appeal (see from 10-1-2005 minutes
meeting of the Administrative Committee of the Jewish Community of Rhodes). THE
………………….. (plaintiff) has legal personality and therefore
has capacity to be subject to rights and obligations and may
is a party, according to the provision of article 62 of the Civil Code. Therefore the
appealed decision which implicitly rejected the relevant claim of the defendant
The 2nd ground of appeal, which supports the opposite, was also not wrong, that is,
plaintiff does not have capacity as a party and is not actively legalized in
bringing legal action is groundless and dismissible. Besides, for her
exercising the legal action did not require an approval decision from the
Regional Director of Dodecanese, who according to no. 4 par. 6 of
Law 2240/1994 supervises the n.p.d.d. and therefore the 3rd ground of appeal with
whom the appellant claims that the legal action is inadmissible and
rejected because no approval decision was granted by the Regional
Director of Dodecanese is baseless and rejectable.
From the provisions of article 2 par.1 of Law 2218/1994 which stipulates that the
Prefectural Self-Governments (N.A.) are self-governing local N.P.D.D.
and of article 20 par.1 sec. b of Law 2344/1995 which replaced the latter
subsection of paragraph 2 of article 39 of Law 2218/1994, which stipulates that from
of the abolition of the above services, the N.A. automatically enter into
all the rights and obligations of the State, which came from the exercise
of the powers of the abolished services and that pending related trials
continue after the publication of the internal service organization of
N.A., i.e. after 5-5-1995, by the State, until the irrevocable
their completion, it clearly follows that in the position of the lessee …………….
and with regard to the specific judicial lease, the n.p.d.d. her
……………………. , in which from 5-5-1995 (chronology
publication of the Organization of the Internal Service of the N.A. Dodecanese in
Government Gazette), all rights and obligations were transferred
which come from the lease of those belonging to the district of the tenant
educational institutions including the one from its automatic readjustment
rental claim, as accepted by the aforementioned 244/2000
decision of this Court (see EfPir. 629/1997 HellDni 38. 1910, EfAth.
1183/1997 Greek Law 39. 188, Official Gazette. 9268/1997 EDIKPOLYK 1998. 358). Therefore the
4th ground of appeal against the part which claims that the appellant …….
…………… did not succeed the State in the contested lease is
baseless and dismissible.
(A) According to article 48 par.1 n.d. 496/1974 "on legal accounting
of persons under public law" the limitation period for monetary claims against
of the N.P.D.D is five years old and begins (according to article 49) from its end
financial year in which the claim arose and is possible
her legal pursuit. According to article 51 case a' of the same n.d/tos, h
limitation of monetary claims is interrupted by the submission of the case
to the competent court and starts again from the last procedural
act of the parties or the court. Finally, according to the provision of article 52 sec.
c) the statute of limitations is taken into account ex officio by the court. Application will
the more general provision of article 263 of the Civil Code is also applicable in the event that
the action is dismissed on formal grounds (i.e. on grounds that are not reducible
in the substance of the claim but for procedural reasons i.e. for lack
procedural conditions entailing its invalidity or inadmissibility) and
is reinstated within six months, in which case the statute of limitations is deemed to have been interrupted
with the previous action, in view of the fact that there is no contrary regulation with the n.d.
496/1974. The filing of a new lawsuit with the
same historical and legal cause. (B) In this case the appellant
Prefectural Self-Government N.P.D.D. with the 4th ground of appeal (according to the relevant
part of it) claims that the legal action as brought beyond five years
for the rents of the period from 1-7-1993 to 18-12-1996 fell under the
five-year statute of limitations of article 48 par.1 n.d. 496/1974. But, like
aforesaid, the plaintiff had brought an action against ……………. her
from 16-2-1996- no. exp. 77/1996-her lawsuit (which was served on it on
4-24-1996 according to the submitted 1830/4-24-96 performance report of
bailiff of Athens N.P.), which was rejected as inadmissible (for
lack of passive legalization of the State) with decision 244/5-7-2000
of the Dodecanese Court of Appeal. Within six months from the publication of the above
decision, the plaintiff brought an action against the appellant ………………… h
which, as mentioned above, took the place of the lessee …………
with regard to the specific legal lease, dated 10-11-2000- no. exp. cat.
338/2000 – her lawsuit (which was notified to her on 11-15-2000 according to
the 12827/2000 service report of the bailiff Rhodes A.Z.), with
which she requested as well as in her previous action against the State, from
and the plaintiff waived this action with the legal action that was filed
to the defendant on 20-12-2001 (see 3249/2001 report of service of the judge
curator of Rhodes M.K.). Therefore, according to what was mentioned in the major
consideration, the statute of limitations shall be deemed to have ceased with the earlier of
16-2-1996 action of the respondent against the State and this reason of
appeal is groundless and dismissed.
The ground of appeal refers to an error of the appealed decision
with its provisional execution order is invalid, since with the
issuance of the decision of the second instance court the appellant becomes
final and therefore enforceable (see S.Samuel the appeal 5th edition, 2003,
para. 542 no. 5, Ref. 10813/1996 Greek Law 38. 1653, Ref. 706/1994 Greek Law 36.
1306). Therefore the 5th and last ground of appeal, with which the appellant
claims that the appellant wrongly declared the judgment provisionally enforceable
according to its counter-voting provision, it is inadmissible and rejectable. Cat
sequence of all these and if there is no other reason for appeal to investigation h
legal appeal must be rejected in its entirety as unfounded and to
the appellant is ordered to pay the court costs of the respondent herein
degree of jurisdiction (articles 176, 183 C.Pol.D), as mentioned in particular
in the ordinance.
FOR THOSE REASONS
Judging objections of the parties.
It formally accepts and essentially rejects the appeal.
It orders the appellant to pay the court costs of the present respondent
degree of jurisdiction which sets three hundred and fifty (350) EUROS.
It was judged, decided in Rhodes on 6-6-2005, in a secret conference and
published in his audience in Rhodes on 7-6-2005, in extraordinary public
meeting, in the absence of the parties and their attorneys, with
secretary present.
The President The Secretary
Source: Law Legal Information Network (www.lawdb.intrasoftnet.com)