Dividing an orchard or shared agricultural land, and boundaries
After an orchard holder dies, the sons and daughters find themselves partners in a single plot: some want to stay and farm, some want their share separated, and others want to sell. If the land is amiri, its division follows rules that differ in important ways from dividing an owned house. The office of lawyer Ali Barakat in Baghdad explains those rules here as they appear in the Civil Code.
Where co-holding of amiri land comes from
Most co-holding of orchards arises from transfer on death: the land passes to those entitled to transfer, and the transfer is registered in their names and shares on the basis of a legal division deed or a final judgment under article 190 of the Land Registration Law. Co-holding can also arise from assigning an undivided share to a buyer. In both cases each partner holds an undivided share, not a defined plot.
The general rule: co-ownership provisions apply
Article 1181 provides that the rules on co-ownership of property apply to co-holding of the disposal right, except where they conflict with a specific provision or with the nature of the disposal right. Its second paragraph names in particular the rules on partners' rights and obligations, the period they remain in co-ownership, management of the shared property, and use-sharing (muhaya'a). The steps for ending co-ownership in court and selling undivided property are explained on ending co-ownership of property.
The specific restriction: divisibility
Paragraph one of article 1182 provides that division of amiri land among co-holders is final, and that assigning it to end co-ownership is subject to the rules on shared property. Paragraph two then adds a restriction with no equivalent for outright property: division is not allowed, even by agreement, unless two conditions are met:
- The land is divisible.
- Each partner can use the separated share as fully as the undivided share.
Agreement among siblings is therefore not enough on its own. The question the text asks is practical: will each separated share remain usable as the undivided share was? That usually involves the size of each share, its access to water and a road, and how trees and buildings are spread among the shares. If both conditions are not met, the route that remains is assignment to end co-ownership under the rules on shared property.
Use-sharing as a temporary alternative
If final division is not possible, or the partners do not want it, use-sharing remains available, meaning allocating use among partners by place or by time, which paragraph two of article 1181 permits by referring to the co-ownership rules. It does not separate shares in the register or change the registered shares, but it settles who farms which part and who harvests which crop for its duration.
Rules specific to a shared orchard
- Turning woodland into a farm: no partner may turn shared woodland or scrub into a farm without the others' permission. If one does, the others share in the farm without compensation and take their portion of the felled trees or their value; if it was done with their permission, they all share the cost, under article 1179.
- Grafting wild trees: a partner who grafts and tends naturally growing trees owns them to the exclusion of the other partners, under article 1180.
- Trees and buildings: they follow the land in disposal and transfer under article 1170, so they are included in the shares on division.
Boundaries, area and water rights
- Old easements: article 1174 keeps in place long-standing rights of drinking water, channels, drainage and pasture over amiri land, so they do not lapse on division.
- Boundaries or area: if a partner assigns a separated share stating its boundaries and area, article 1206 makes the boundaries govern where the consideration is named as a lump sum, and the area govern where it is named at a unit rate.
Legal basis and sources
- Civil Code No. 40 of 1951, articles 1170, 1174, 1179 to 1182 and 1206 (Official Gazette, issue 3015 of 8/9/1951)
- Land Registration Law No. 43 of 1971, article 190 (Official Gazette, issue 1995 of 10/5/1971)
Frequently asked questions
We heirs agreed to divide the orchard. Is our agreement enough?
Amiri land may not be divided, even by agreement, unless it is divisible and each partner can use the separated share as fully as the undivided one, under article 1182.
May one partner clear shared woodland and farm it?
Not without the partners' permission; if he or she does, they share in the farm without compensation, under article 1179.
Does my neighbour's right to the irrigation channel end after the land is divided?
Long-standing water and channel rights remain in place under article 1174.
What is the alternative if final division is not allowed?
Use-sharing, or assignment to end co-ownership under the rules on shared property.
Related topics and articles
- 01Ending co-ownership of shared propertyHow co-ownership of property ends under the Civil Code: agreed partition by registration, a First Instance claim, or sale if it cannot be divided.
- 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.
- 03Encroachment on agricultural land and the holder's actionsProtection of the holder of amiri land against encroachment under articles 1174 to 1178 of the Civil Code and the possessory actions in articles 1150, 1154 and 1155: recovery from a usurper, fair rental, removal of trees and buildings, seed, and halting new works.
- 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.