Law Office ofAli Barakat
Sale, lease, and the recording of title

Acquisitive possession of property and the passage of time

In briefPossession is effective physical control of a thing that may be dealt in, under article 1145 of the Civil Code. A person who possesses unregistered immovable property for fifteen years without interruption cannot, if he denies the claim, have an ownership claim heard against him by a person who has no lawful excuse, under article 1158. If the possession is accompanied by good faith and rests on just title, the period is five years.

The office of lawyer Ali Barakat in Baghdad sets out the rules on possession of immovable property in Civil Code No. 40 of 1951, published in the Iraqi Official Gazette, issue 3015, of 8/9/1951. The page explains when an ownership claim is not heard against the possessor. It is not a means of proving ownership of registered property other than by the register.

The meaning of possession and the conditions for its effect

Possession is a physical state in which a person, by himself or through another, exercises effective control over a thing that may be dealt in, or actually exercises a right, under article 1145, first paragraph. Possession is not founded on an act done as a mere licence, or on an act tolerated by another as a matter of forbearance, and it is not founded on intermittent acts, under paragraph 2. If possession is accompanied by coercion, or is obtained secretly, or is ambiguous, it has no effect against the person subjected to the coercion, or from whom the possession was concealed, or for whom the matter was ambiguous, except from the time those defects cease, under article 1146.

A person who possesses a thing is treated as its owner until evidence to the contrary is produced, under article 1157, first paragraph. If possession is shown to have existed at a given earlier time and is in existence now, that is a presumption that it existed in the interval, unless evidence to the contrary is produced, under article 1159.

The period for unregistered immovable property

A person who possesses a movable, or immovable property that is not registered at the Real Estate Registration Department, as owner, or who possesses a real right over a movable, or an unregistered real right over immovable property, and whose possession continues without interruption for fifteen years, cannot, if he denies the claim, have an ownership claim or a claim to the real right heard against him by a person who has no lawful excuse, under article 1158, first paragraph. The text refers to unregistered immovable property, or to an unregistered real right over immovable property. That paragraph is not to be read as cancelling a real estate register entry where the property is registered, because proof of registered ownership rests on the registers under Real Estate Registration Law No. 43 of 1971.

If the possession concerns immovable property, or a real right over immovable property, that is not registered at the Real Estate Registration Department, and the possession is accompanied by good faith and at the same time rests on just title, the period after which the claim is not heard is five years. Good faith is required only at the time the right is received, under paragraph 2. Just title is an instrument or an event that establishes possession of the property by one of the following means: occupation of waste land, transmission of ownership by inheritance or will, gift, or sale or release, under paragraph 3.

Limitation is not interrupted by loss of possession if the possessor recovers it within a year or brings a claim to recover possession within that time, under article 1161. The rules on limitation that bars a claim on an obligation apply to the limitation that bars an ownership claim, as to the calculation of the period, its suspension and interruption, reliance on it before the courts, waiver of it, and agreement to modify the period, to the extent those rules do not conflict with the nature of this form of limitation and subject to the preceding provisions, under article 1162. The detail of limitation of obligations is explained on the page When a civil claim is not heard because of the passage of time.

ArticlePeriod
1158, first paragraphFifteen years of continuous possession of unregistered immovable property, or of an unregistered real right
1158, second paragraphFive years if the possession is accompanied by good faith and rests on just title
1161One year to recover possession or to bring a claim to recover it, so that limitation is not interrupted

Legal basis and sources

  1. Civil Code No. 40 of 1951 (Iraqi Official Gazette, issue 3015 of 8/9/1951) — Articles 1145, 1146, 1157, 1158, 1159, 1161 and 1162

Frequently asked questions

Is fifteen years' possession of a property registered in another person's name enough to acquire ownership of it?

Article 1158 addresses immovable property that is not registered at the Real Estate Registration Department, or an unregistered real right over immovable property. The real estate registers are evidence of what is recorded in them unless they are challenged as forgeries. The rule for unregistered property does not extend to a property that has a current register entry.

When is the period reduced to five years?

If the possession concerns unregistered immovable property, or an unregistered real right over immovable property, and is accompanied by good faith and rests on just title, the period is five years, under article 1158, second paragraph. Good faith is required at the time the right is received. Just title is limited by paragraph 3 to the means listed there.

Is the period interrupted by losing possession for a day or part of a day?

Limitation is not interrupted by loss of possession if the possessor recovers it within a year or brings a claim to recover possession within that time, under article 1161. Anything beyond that is left to the article and to the facts of the dispute.

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

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