Encroachment on agricultural land and the holder's actions

The office receives many complaints from orchard holders: a neighbour has moved a fence into the land, someone has farmed part of it for two seasons, another has built a room on its edge, or herders bring their animals in after the harvest. The holder of amiri land has specific protection under the Civil Code, in addition to possessory actions. The office of lawyer Ali Barakat in Baghdad explains that protection here. Encroachment on land belonging to the state and municipalities themselves is covered on encroachment on state property.

Prohibited forms of trespass

Article 1175 of the Civil Code provides that no one may use amiri land in which another holds the disposal right, take its cultivated or natural produce, cross it without a right of way, use it as pasture or a threshing floor, uproot its trees, gather firewood from it, or trespass on it in any way. It provides that every trespass makes the trespasser liable for compensation.

The text is broad: it is not limited to outright seizure but covers crossing, grazing, gathering wood and picking fruit.

Grazing after harvest and old easements

Paragraph one of article 1174 keeps in place long-standing rights of drinking water, channels, drainage and pasture over amiri land. Paragraph two, however, provides that harm does not become established by age, so the owner of animals is liable for the harm they cause, and after the harvest animals may be released only in places where they were traditionally released. Crossing or grazing based on an old right is therefore not trespass, while anything beyond it falls under article 1175.

Recovery from a usurper

Paragraph one of article 1176 gives the holder the right to recover the land from a usurper and to claim a fair rental for the period it was in the usurper's hands.

What happens to the usurper's plantings and buildings

Paragraphs two and three of article 1176 set out:

• Plantings and buildings: the holder may require removal of trees and vines and demolition of buildings the usurper put up without right. If removal or demolition would harm the land, the holder may take these works at their value as due for removal or demolition.
• Seed: if the usurper has sown seed in the land, the holder may choose between taking it for its equivalent or value, and leaving it to the sower until harvest against a fair rental.

Possessory actions

Article 1177 allows the holder to recover possession of the land, and to seek an order stopping interference and halting new works, under the rules and procedures for possessory actions. The following Civil Code articles govern those actions:

1. Recovering possession: a possessor of real property who is dispossessed may ask the Court of First Instance to restore possession within a year of dispossession, and if dispossession was concealed the period runs from its discovery, under article 1150.
2. Stopping interference: a person who has possessed real property for a full year and then suffers interference may bring an action to stop it before the Court of First Instance, under article 1154.
3. Halting new works: a person who has possessed real property for a full year and reasonably fears interference from new works may seek to halt them, provided they are not complete and a year has not passed since they began, under article 1155.

Article 1156 provides that a judgment in a possessory action does not decide the underlying right. These are quick actions protecting the existing position, and a dispute over the disposal right itself remains a separate matter.

Deprivation only under the law

Article 1178 provides that a holder may not be deprived of the disposal right except in the cases and by the method the law sets, and in return for fair compensation paid in advance. The expropriation route is covered on expropriation and compensation.

What to gather before a review

A recent record extract proving the disposal right, and anything showing the date and extent of the trespass, such as site photographs, neighbours' testimony or an earlier inspection report, because possessory action periods run from dispossession or the start of works.

Legal basis and sources

1. Civil Code No. 40 of 1951, articles 1150, 1154 to 1156 and 1174 to 1178 (Official Gazette, issue 3015 of 8/9/1951)

Frequently asked questions

Related topics and articles

• 01Encroachment on state and municipal property and the removal pathEncroachment on State, Amanat Baghdad or municipal property, the administrative removal path, and how it differs from expropriation.
• 02Dividing an orchard or shared agricultural land, and boundariesRules on dividing shared amiri land and orchards under articles 1174, 1179 to 1182 and 1206 of the Civil Code: when division is allowed even by agreement, use-sharing, turning woodland into a farm, grafting, boundaries versus area, and water and channel rights.
• 03Expropriation for public benefit and compensationExpropriation and compensation under Law 12 of 1981: an agreed taking, the Court of First Instance, the Valuation Board, and registration.
• 04The disposal right over amiri land: meaning, scope and transferWhat the disposal right over amiri land is under article 7 of the Land Registration Law and articles 1169 to 1199 of the Civil Code: what the holder may do, what is barred, and how it passes on death to descendants, parents and grandparents.
• 05Selling and assigning the disposal right over amiri landHow the disposal right over amiri land is transferred between living persons under articles 1202 to 1208 of the Civil Code and article 203 of the Land Registration Law, the effect of unpaid consideration, boundaries versus area, and agrarian reform restrictions.

Always check the text in force and its amendments in the official source.

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