The musataha contract in Iraqi law and its relation to amiri land
The musataha contract often comes up when an investor wants to put up warehouses, a workshop or a project on land they do not own, agreeing with the owner to build for a long period in return for rent. Holders of agricultural land ask: can a musataha be made over my amiri land? The office of lawyer Ali Barakat in Baghdad explains here what the texts say.
Definition
Paragraph one of article 1266 of the Civil Code defines musataha as a real right entitling its holder to put up a building or other works, other than plantings, on another's land under an agreement with the landowner setting out the holder's rights and obligations. Paragraph two requires its registration at the land registration department.
Musataha is therefore for buildings and works, not planting. Someone who wants to farm or plant another's land is outside this framework.
Which land can carry musataha?
Paragraph one of article 229 of the Land Registration Law provides that musataha arises on owned land or land dedicated by valid waqf by registering the agreement of the landowner and the musataha holder in the land register. Amiri land, under the seventh article of the same law, is land whose ultimate title belongs to the state, and it falls outside the two categories named in article 229.
Any musataha project therefore starts with the record extract: is the land outright property or amiri? The holder of amiri land may in any case, under article 1169 of the Civil Code, put up agricultural buildings, houses, shops and workshops for agricultural purposes. Changing the land's category in the register is covered on changing land category.
Long leases for building
Paragraph two of article 229 provides for registration of a long lease that entitles the tenant to put up a building or works other than plantings, and subjects its registration, term, disposal and inheritance to the musataha rules. Article 231 provides that if the musataha covers a specific part of the land, that part must be separated as its own plot before registration.
Term
- The term may not exceed fifty years under paragraph one of article 1267 of the Civil Code; if a longer term is agreed, registration is limited to fifty years under article 230 of the Land Registration Law.
- If no term is set, either party may end the contract three years after notifying the other.
- The right does not end if the building is lost before the term expires, under paragraph two of article 1267.
Rights of the holder and the landowner
Article 1269 of the Civil Code and article 232 of the Land Registration Law provide that the holder owns outright the buildings and works they put up and may dispose of them together with the musataha right, by sale or mortgage, without the landowner's consent unless otherwise agreed, and the right passes by inheritance and bequest. Article 233 allows the landowner every legal transaction over the land except those affecting the holder's rights, such as creating an easement, and physical steps such as subdivision or merger only with the holder's consent.
Rescission and termination
- Late rent: if rent was agreed and the holder is three consecutive years late, the landowner may seek rescission unless otherwise agreed, under article 1268.
- Grounds of termination: article 234 provides that musataha ends when ownership of the land, the musataha and the buildings unite in one person, or when it is ended early by agreement or by a final court judgment.
- The buildings: article 1270 provides that at the end of the musataha the buildings and works pass to the landowner, who pays the holder their value as due for removal, unless a condition provides otherwise.
Legal basis and sources
- Civil Code No. 40 of 1951, articles 1169 and 1266 to 1270 (Official Gazette, issue 3015 of 8/9/1951)
- Land Registration Law No. 43 of 1971, articles 7 and 229 to 234 (Official Gazette, issue 1995 of 10/5/1971)
Frequently asked questions
Can a musataha be made over amiri land?
Article 229 of the Land Registration Law confines the creation of musataha to owned land or land dedicated by valid waqf.
What is the maximum musataha term?
Fifty years under article 1267 of the Civil Code and article 230 of the Land Registration Law.
When may the landowner rescind a musataha?
If the holder is three consecutive years late with rent, unless otherwise agreed, under article 1268.
Who owns the building when the term ends?
The landowner, against payment of its value as due for removal, unless a contrary condition applies, under article 1270.
Related topics and articles
- 01The 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.
- 02Drilling artesian wells for agricultural projects in IraqWell licences under Water Well Drilling Instructions No. 1 of 2011: state ownership of groundwater, the application with a recent land registration deed, one-year licence term, spacing between wells, pump tests, user obligations, replacement wells, and pumping halts during scarcity.
- 03Changing the land category from agricultural to residential or commercialChanging a property's kind or class in the register from agricultural to residential or commercial, under Land Registration Law 43/1971.
- 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.
- 05Approvals from the agriculture directorate and other authorities in agricultural land transactionsWhen the texts require approval from the agriculture directorate, the Minister of Agriculture, the agricultural council, the groundwater authority or a court in agricultural land transactions, under Law No. 24 of 2013 as amended, the Agrarian Reform Law, the Well Drilling Instructions and the Civil Code.