466/2012 BR ROD (ASF) ( 588171)
(1ST LAW PUBLICATION)
County insurance measures, lease. In this process no one can be identified as
lessee or owner, because a discovery action is required, unless there is one
preliminary judgment. It was alleged that the applicant as a sub-tenant was ejected from the tenancy, of
it was forbidden to enter it, therefore it did not have the above qualities.
DECISION NUMBER 466/2012
SAFEGUARD PROCEDURE
THE SINGLE-MEMBER COURT OF FIRST INSTANCE OF RHODES
COMPILED by Judge Kalliopi Lola, President of the First Instance, who was appointed by
lottery, according to the law, without the cooperation of the secretary.
HELD in public, in their audience on March 12, 2012, to try her under no.
filing 1589/11.8.2011 application between:
OF THE APPLICANT: An anonymous company with the name "R. SA", based in Thessaloniki and
legally represented, which was represented by Savva's attorney
Charalambous.
OF KATHO THE APPLICATION: 1) A. K., resident of Rhodes, 2) P. K., resident of Rhodes, 3) P. K., resident
Thessaloniki and 4) P. K., a resident of Rhodes, of which the first appeared after the others
others were represented by their attorney Ioannis Karamihalis.
The applicant requests that her application of 11.8.2011, submitted to the Secretariat, be accepted
of this Court with deposition report number 1589/11.8.2011 and determined for the
trial of 11-14-2011, when it was postponed for the trial mentioned at the beginning of
present (12.3.2012).
DURING TODAY'S public hearing of the case, the attorneys for the parties
of the applicant developed their claims and asked to be admitted.
AFTER STUDYING THE LITERATURE
CONSIDERED ACCORDING TO THE LAW
With the considered application, the applicant states that she is a sublessee of a property owned by
of the defendant since 2006 and that since 2006 he has been the owner of the disputed lease.
That on 8-8-2011, the defendants initiated a procedure to dismiss the alleged
as a new tenant K. R. and then after the no. 3314/2011 expulsion report and
installation of the bailiff H. K., the defendants changed the locks on the lease with
as a result of which the applicant's access to the property becomes impossible. Following him
as the above history and citing an emergency request to temporarily regulate the
situation and to temporarily recognize her status as its owner and lessee
disputed rent, to oblige the defendants to remove the insult against her and to refrain
from any act of obstructing the applicant's right to use the rent while finally
requests that the defendants be ordered to pay her court costs.
With this content, the legal application, competently brought, as the defendant
urgent case, before this Court, in the present proceedings
of injunctive measures (articles 682, 683, 686 et seq. of the Civil Code), is legal, based on
provisions of articles 731, 732 of the Civil Code, except for the request for recognition of the status of
applicant as owner and lessee, which, although it may be judged as preliminary, is not
legitimate as an independent claim since the recognition of a right can only be achieved by
investigative action, according to art. 70 of the Civil Code and not by applying for insurance
measures (see Vassiliou Brakatsoula, "Insurance measures" E edition, p. 31). Therefore, the
application must, in the part deemed legitimate, be further examined on its merits.
From the assessment of the testimony of the applicant's witness FT, who was examined under oath
at the hearing, the documents produced and the parties' claims
the following were assumed: The defendants are co-owners by a percentage of 1/6 indivisible
first and third and 2/6 undivided the second and fourth, of a property of approx.
16,000 sq.m. which is located in the cadastral portion of ... lands of Ixia. This property
acquired from their licensors A. and M. K. The above property was initially leased
by the licensors of the defendants on 17-3-1984 to P. R. and K. M. for a period of six
years. Then on 24-6-1997 by virtue of an agreement to approve a sublease, part of the property
area 350 sq.m. was subleased to the company "R. SA". It was further hypothesized that due to
of the fact that the aforementioned company did not pay the rents to the defendants of the application, who
entered into the lease agreement after the year 2003 but also due to the fact that the above
lease was invalid due to the fact that the permit of art. 26 of the law
1892/1990, on 3-11-2011 a new lease was concluded between the petitioners and K. R., the
who is believed to be related to the applicant, who is of interest to the family
P., as it appears that K. R. uses the applicant's email address. Moreover
and the witness himself, although he said he did not know K.R., confessed that he testified as a witness
of him in a trial concerning the disputed rent. It was further alleged that on 16-6-2011
was issued with no. 835/2011 rent payment order of the judge of this Court of First Instance,
on the basis of which on 21-6-2011 the expulsion report of K. R. was drawn up on the same date.
from the rent and installation in that of the persons applying. Of all the above
it is probable that the applicant has not been the owner and lessee of the property since 2009,
given that the applicant's witness also testified expressly that her entry has been prohibited
applicant for the lease as early as 2010, and therefore the present application must be rejected as
essentially unfounded, as the facts referred to were not suspected
she. Finally, the court costs of the defendants must be imposed against the applicant because of her
its defeat (art. 176 of the Civil Code).
FOR THOSE REASONS
JUDGES opposition of the parties.
REJECTS the application.
IMPOSES against the applicant the court costs of the defendants, which are defined in the amount
of two hundred and fifty (250) euros.
JUDGED, decided and published in Rhodes, in his audience and in extraordinary
public meeting thereof on April 23, 2012.
THE PRESIDENT THE SECRETARY
E.F.
Source: Law Legal Information Network (www.lawdb.intrasoftnet.com)
