Pledging and attaching the disposal right over amiri land

A farmer borrows to buy a pump or seed or to finish a season, then struggles to repay, and asks: will my orchard be sold? Will the tractor be seized? The creditor, for their part, asks: can an amiri orchard be accepted as security? The office of lawyer Ali Barakat in Baghdad explains here what the texts say about pledging and attaching the disposal right, and what a farmer's property is exempt.

The disposal right as security for creditors

Article 1171 of the Civil Code provides that the disposal right, like the rest of the debtor's property, is general security for creditors, who may attach it and recover their debts from its proceeds even after the debtor's death, whether the debtor holds only this right or has other property. The fact that land is amiri does not shield it from the holder's creditors.

Mortgaging the disposal right by registration

Paragraph one of article 305 of the Land Registration Law provides that a registered (non-possessory) mortgage may be entered over real property ownership and the other principal real rights in land recorded in the register, whether held alone or in common, subject to legal restrictions on mortgaging certain rights. The disposal right is a principal real right. Paragraph two provides that the mortgage arises only on registration, and article 306 provides for registration on the acknowledgement of the creditor and the debtor, or their representatives, before the competent official.

Possessory pledge

Article 1328 of the Civil Code expressly allows a possessory pledge of amiri land. Article 325 of the Land Registration Law provides for its registration on the parties' acknowledgement and delivery of the property to the creditor or to a trusted third party with the creditor's consent, and that it arises only on registration. Article 327 applies the rules for registered mortgages to its registration so far as consistent with its nature. The practical difference is that under a possessory pledge the land passes into the hands of the creditor or the third party, so it is in their possession rather than the holder's for the period of the pledge.

Restrictions on pledging certain land

Paragraph 4 of article 24 of the Agrarian Reform Law bars a recipient under article 18 from creating any real right over distributed land, and a pledge is an accessory real right. Before accepting agricultural land as security, the record extract should therefore be checked for the basis on which it was registered.

Enforcement attachment of the land

Article 86 of the Execution Law provides that the enforcement officer notifies the land registration department to place an attachment mark on the property's record, after which no transaction may be carried out on it without the consent of the enforcement directorate. Article 91 allows the enforcement officer to permit the debtor to sell the attached property for no less than its assessed value, with the land registration department deducting the debt and its accessories at the time of sale. The general difference between mortgage and attachment is covered on mortgage versus enforcement attachment.

What a farmer's property is exempt

Article 62 of the Execution Law lists property that may not be attached or sold for a debt, including items that concern farmers directly:

• Paragraph eight: a farmer's tools and implements needed for farming, seed kept for sowing, fertiliser prepared for the land, animals used in farming, and enough of the farmer's crops and supplies to support the farmer and family for a month.
• Paragraph nine: fruit, vegetables and crops before they have material value.
• Paragraph fifteen: the debtor's property whose income does not exceed the needs of the debtor and dependants, unless it is mortgaged or the debt arose from its purchase.
• Paragraph five: machines and tools the debtor needs to practise his or her occupation, unless the debt arose from their purchase.

A pump bought with the very debt being enforced therefore falls outside the paragraph five exemption.

Legal basis and sources

1. Civil Code No. 40 of 1951, articles 1171 and 1328 (Official Gazette, issue 3015 of 8/9/1951)
2. Land Registration Law No. 43 of 1971, articles 305, 306, 325 and 327 (Official Gazette, issue 1995 of 10/5/1971)
3. Execution Law No. 45 of 1980, articles 62, 86 and 91 (Official Gazette, issue 2762 of 17/3/1980)
4. Agrarian Reform Law No. 117 of 1970, article 24 (Official Gazette, issue 1884 of 30/5/1970)

Frequently asked questions

Related topics and articles

• 01An insurance mortgage and enforcement attachment of propertyAn insurance mortgage concludes only by registration (Civil Code art. 1286); enforcement attachment of property follows Enforcement Law arts. 86 and 87.
• 02The 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.
• 03Agrarian Reform Law No. 117 of 1970 in force: ceilings, distribution and recipients' obligationsAgrarian Reform Law No. 117 of 1970 remains in force as amended: the ceiling on agricultural land area, nullity of contracts that breach it, distribution of land and orchards, recipient conditions, registration after five years, obligations and cancellation of distribution.
• 04Selling 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.
• 05The musataha contract in Iraqi law and its relation to amiri landThe musataha right under articles 1266 to 1270 of the Civil Code and articles 229 to 234 of the Land Registration Law: which land it arises on, the fifty-year term, rescission for unpaid rent, what happens to buildings at the end, and the difference with amiri land.

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

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