Expropriation for public benefit and compensation
The office of lawyer Ali Barakat in Baghdad sets out expropriation for public benefit and compensation under Appropriation Law No. 12 of 1981, as amended, published in the Iraqi Official Gazette, issue 2817, of 16/2/1981. This path is the taking of property, or of an original real right, in return for compensation. It is separate from compensation for those harmed by terrorist operations under Law No. 20 of 2009, and from the removal of an encroachment on State or municipal property.
The aim and scope of the law
The law aims to organise the expropriation of property and of the original real rights attached to it by State departments and by bodies that are legally entitled to own property, in order to achieve their purposes and to carry out their plans and projects; to lay down uniform rules and bases for fair compensation that protect the rights of owners without prejudicing the public interest; and to simplify the expropriation procedure, under article 1.
Its provisions apply to all immovable property, including agricultural and non-agricultural land and orchards, except property whose taking, or the extinction of disposal rights over it, is organised by special legislation, subject to article 3. They also apply to rights of disposal over land owned by the State that are excepted from extinction under Law No. 53 of 1976 unifying the classes of State lands, and to other original real rights attached to the property, under article 2. The assessment and compensation rules in this law replace the rules in legislation that provides for the taking of property or the extinction of a right, under article 3.
Agreed expropriation
State departments and bodies that are legally entitled to own property may agree with the owner of the property, or with the holder of the real right, on an agreed taking, in kind or in cash, for the consideration assessed by the Valuation Board formed under this law. If the property is commonly owned, the consent of all co-owners is required, under article 4.
After the parties have agreed, the expropriating body asks the Valuation Board to fix the compensation, and notifies the Real Estate Registration Department to place a restriction on disposition on the property. The chair of the Valuation Board notifies the Board's decision to the expropriating body, to the person whose property is taken, and to the Real Estate Registration Department, as soon as it is issued, under article 5. The decision becomes final and binding, and not open to challenge, if both parties accept it in writing, or if ten days pass from their being notified of it without an objection to the chair of the Board. If either party objects within that period, the agreed-expropriation steps are treated as cancelled, and the chair must notify the Real Estate Registration Department to lift the restriction on disposition, under article 6.
The expropriating body must deposit the compensation with the Real Estate Registration Department for the place where the property lies, or register the substitute property in the name of the person whose property is taken if compensation is in kind, within sixty days of being notified of the Board's decision, unless the parties agree otherwise. The person whose property is taken must deliver the property in the condition it was in at the time of the assessment, within thirty days of the deposit, unless otherwise agreed. The agreement and the Board's decision, after the deposit, form the basis for registration in the real estate register without any further steps, under article 7. If the compensation is not deposited, or the substitute property is not registered, within that period, the person whose property is taken may withdraw consent and notify the expropriating body and the Real Estate Registration Department in writing, and the steps taken are treated as cancelled, under article 8.
The application to the Court of First Instance of the place where the property lies, and the Valuation Board
State departments and bodies that are legally entitled to expropriate property may apply to take any property, or part of it, or the original real rights attached to it, in order to carry out their projects and achieve their purposes, under article 9. The application is submitted to the Court of First Instance of the place where the property lies. It must confirm that there is no planning or legal obstacle to the taking, except for taking for military purposes, and must be accompanied by a copy of the latest register entry for the property, or a confirmation from the Real Estate Registration Department that it is unregistered or is subject to confirmation formalities, by a certified plan marked with the area to be taken, and by a statement of the names and addresses of the owners or of the actual possessors, under article 10.
The court fixes a date to hear the application within ten days of its being registered, asks the Real Estate Registration Department not to record any disposition of the property, and summons the parties. If there is more than one person whose property is taken, or if one of them has died, notification may be made by announcement in a local daily newspaper, under article 11. At the first hearing the court checks that the conditions are met, and either requires the expropriating body to complete what is missing or dismisses the application, as the case requires. If the application is dismissed, the Real Estate Registration Department is notified to lift the restriction on disposition after the decision becomes final, under article 12.
The court carries out an inspection for the purpose of assessing compensation, through a Valuation Board chaired by the judge of the court, with the head of the Real Estate Registration Department or a deputy, the head of the Real Estate Tax Office or a deputy, a representative of the expropriating body, and a representative of the person whose property is taken, as members. If there is more than one such person and they do not agree, or if some are absent, the court appoints the representative from among the experts. The Board is quorate only if all members are present, under article 13. The Board is guided by the bases in the law in order to reach fair compensation as at the date of the inspection and assessment. The court decides the application as a matter of urgency, under article 14.
The expropriating body pays the compensation and the costs to the court in cash, where compensation is monetary. Once the expropriation decision has become final and the court has received the full compensation and costs, the court notifies the Real Estate Registration Department to register the property taken, or the substitute property, in accordance with the expropriation decision, under article 15. The property is registered in the name of the expropriating body free of the rights that attached to it, and the rights of their holders pass to their substitute out of the compensation, under article 16.
In the case of a partial taking, the person whose property is taken may request that the whole property be taken if the remaining part cannot be used, and the court so orders if the Valuation Board so finds, under article 49. If the partial taking causes material damage to what remains of the property, the person whose property is taken is entitled to compensation for that, under article 50. The owner may object to the property being included in a betterment charge, and to the amount of the charge, before the Court of First Instance of the place where the property lies, within fifteen days of being notified of the assessment list, under article 45, in the cases in which the law organises a betterment charge for Amanat Baghdad or for the municipality.
Legal basis and sources
- Appropriation Law No. 12 of 1981, as amended (Iraqi Official Gazette, issue 2817 of 16/2/1981)
- Real Estate Registration Law No. 43 of 1971 (Iraqi Official Gazette, issue 1995 of 10/5/1971)
Frequently asked questions
To which court is an expropriation application submitted if there is no agreed taking?
The application is submitted to the Court of First Instance of the place where the property lies, accompanied by a copy of the register or a confirmation from the Real Estate Registration Department, the plan, and a statement of the names of the owners or possessors, under article 10 of the Appropriation Law.
Who assesses the compensation in a judicial expropriation?
It is assessed by the Valuation Board, chaired by the judge of the Court of First Instance, with the head of the Real Estate Registration Department or a deputy, the head of the Real Estate Tax Office or a deputy, a representative of the expropriating body and a representative of the person whose property is taken, as members, under article 13.
Is expropriation for public benefit the same as compensation for those harmed by terrorist operations?
No. Expropriation under Law No. 12 of 1981 is the taking of property or of a real right in return for a sum that is assessed, deposited and then recorded at the Real Estate Registration Department. Compensation for those harmed by terrorist operations proceeds under Law No. 20 of 2009, which is a separate path.
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.
- 02Real Estate Registration Departments in Baghdad, Karkh and RusafaFiling at a Baghdad Real Estate Registration Department under Law 43/1971: venue follows the department's area of work, the property and its register.
- 03What a landlord reviews before and after a lease in BaghdadWhat a Baghdad landlord reviews before and after a lease under Rent Law 87/1979 and the Civil Code.
- 04Sale or mortgage and the real-estate tax step in governorates not organised in a regionSale or mortgage and the real-estate tax step in governorates not organised in a region, under Law 162/1959 and Land Registration Law 43/1971.
- 05Ending 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.