Kuwait Court of Cassation principle number 411

Summary: - A request for eviction for non-payment of rent necessarily includes an implicit request for rescission of the contract. Its consequence. The tenant's possession is deemed that of a usurper from the date of the eviction judgment. Its effect. Requiring him to pay compensation for the right of use until eviction is completed. Rule: It is established in this Court's jurisprudence that the provision in Article 276 of the Code of Civil Procedure concerning the particulars that must be included in the judgment awarding the auction and its operative part is in view of the special nature of that judgment as a means of compulsorily transferring ownership of the property from the debtor against whom attachment has been levied to the successful bidder. Accordingly, once the judgment awarding the auction has been issued, there is no need to serve it in any form, and enforcement proceeds in the manner detailed in the second paragraph of the same article, by notifying the debtor of the day designated for delivery and requiring him to attend at the designated place and time of delivery. The successful bidder's delay in completing this notification has no effect on the request to obtain his entitlement to the fruits of the property from the date of issuance of the judgment awarding the auction. This is because, once the sale has been effected—by issuance of the judgment awarding the auction—the fruits and revenues of the property belong to the successful bidder, since his personal right to the property and its fruits arises on the day the judgment awarding the auction is issued. That is, the award of the auction in a compulsory sale entails transfer of ownership of the thing sold from the debtor or possessor to the successful bidder in exchange for the price he paid.. Whereas the legislature, under Articles 10 and 20/1 of Decree-Law No. 35 of 1978 concerning the Lease of Real Estate, as amended by Laws 2 of 1988 and 8 of 1994, required the tenant to pay the rent due at the agreed time, or at the beginning of each month in the absence of agreement if the tenancy is monthly, and at the beginning of each contracted period in other cases, and granted him a grace period of twenty days during which he was permitted to deposit it in the treasury of the Enforcement Department after legally tendering it, and deemed such deposit within the prescribed time to constitute payment discharging his liability, and made failure to pay the rent on time give rise to the landlord's right to request eviction from the leased premises together with requiring the tenant to pay the rent arrears due from him. Whereas the appellant's ownership of the property containing the apartment in dispute was established under the judgment awarding the auction No. 26/2010, 87/2009 Sales, issued on 8/11/2010, and he notified the respondent of the transfer of ownership to him by formal notice No. 111661950 dated 4/8/2011, but the latter did not submit anything demonstrating payment of the rent for August and September 2011, whether to the appellant or by deposit in the treasury of the Enforcement Department within the prescribed time, the request for eviction from the premises described in the statement of claim and the lease dated 15/7/2007, their delivery free of occupants and encumbrances, and an order to pay the rent arrears amounting to KWD 800, representing the rent arrears for the period from 1/8/2011 to 30/9/2011, is therefore founded on a sound basis in fact and law and must be granted. This is not undermined by the respondent's allegation that he paid that rent, since this allegation was an unsupported assertion for which no evidence was furnished in the papers. As regards the request for rent accruing until eviction is completed, since it is established in this Court's jurisprudence that a request for eviction for non-payment of rent necessarily includes an implicit request for rescission of the contract, and the Court has concluded above that the respondent is to be evicted from the premises in dispute, which implicitly includes a ruling rescinding the contract, the latter's possession therefore becomes that of a usurper. He is thus required to pay compensation for use from 1/10/2014, which the Court assesses, in adherence to his request, at four hundred dinars monthly until eviction is completed. Since the appealed judgment departed from this view, it must be set aside and judgment entered granting the appellant's requests.