Ownership of floors, apartments and common parts
The office of lawyer Ali Barakat in Baghdad sets out the ownership of floors, apartments and common parts in buildings, under Law No. 61 of 2001 regulating ownership of floors and apartments in buildings, published in the Iraqi Official Gazette, issue 3860, of 8/1/2001, and the rules on upper and lower storeys, a shared wall and a private road in articles 1082 to 1095 of Civil Code No. 40 of 1951.
The definition of a building, and the partition of floors and apartments
For the purposes of Law No. 61 of 2001, a building is a structure of two or more floors, including the ground floor, erected with that description under a permit. A floor is every independent immovable unit. An apartment is every independent immovable unit forming part of a floor, under article 1. In Baghdad the permit is sought from Amanat Baghdad, and in another city from the municipal directorate, as explained on the page A building permit from Amanat Baghdad or the municipality.
The building may be partitioned into floors or into apartments and registered in the names of their owners in accordance with the law, under article 2. The Real Estate Registration Department in whose area of work the property lies is approached. Partition within municipal limits is based on a plan drawn up in accordance with the law and certified by Amanat Baghdad or by the municipality, under article 284, first, of Real Estate Registration Law No. 43 of 1971. In every matter for which Law No. 61 of 2001 contains no provision, the Real Estate Registration Law and the other related statutes apply, under article 13.
The common parts and the owners' association
If there is more than one owner of floors or apartments in a building, and each owns a floor or apartment as a separate title, they are co-owners of the land and of the parts prepared for common use by all, and in particular of the foundations, the main walls, the entrances, the courtyards, the ceilings and roofs, the lifts, the staircases, the corridors, the passages and the pipes, except what lies inside the floor or apartment itself, unless the title deeds provide otherwise, under article 3.
The common parts mentioned in article 3 may not be partitioned. Each owner's share in them is in proportion to the value of the floor or apartment owned, and an owner may not dispose of that share separately from that floor or apartment, under article 4. That distinguishes the common parts from ordinary co-ownership, which may be the subject of a request to end the co-ownership, itself the subject of the page Ending co-ownership of property. The walls or partitions between two apartments are commonly owned by the owners of those two apartments, under article 5.
Each owner may use the common parts for the purpose for which they were prepared, provided this does not prevent the other owners from using those parts, under article 6. Each owner must contribute to the costs of preserving, maintaining, administering and renewing the common parts, in a share proportionate to the value of the floor or apartment owned, unless an agreement provides otherwise. An owner may not abandon the share in the common parts in order to escape contribution to those costs, under article 7.
No owner may do anything that would threaten the safety of the building or change its shape or external appearance. No alteration may be made to the common parts without the consent of the owners' association formed under article 9, unless the alteration, carried out by one owner at that owner's expense, would facilitate use of those parts without changing their purpose or harming the other owners, under article 8.
An association of the owners is formed by operation of the law to administer the common parts, and it has legal personality for that purpose. All owners of floors or apartments, or their actual occupiers, are members of the association. The actual occupier represents the owner in dealings with the association and takes the owner's place in rights and duties, other than those inseparable from the quality of owner. The owners of a single floor or apartment, or those who represent them, are treated as one person for membership, under article 9. The association adopts internal rules to secure the proper use and administration of the common parts, and is subject to Cooperative Law No. 15 of 1992 as to accounts, supervision and oversight, under article 10.
If the building is destroyed in whole or in part for any reason, the owners are bound to renew or rebuild it as the association decides by the majority provided for in its internal rules, and any compensation due because of the destruction is allocated to the renewal or rebuilding. If an owner refuses to comply with the association's decision, that owner is bound to sell the rights to the other owners, or to some of them, at the price fixed by the Court of First Instance on an application by the chair of the association. If they refuse to buy, the rights are sold in the manner laid down in Enforcement Law No. 45 of 1980, before the Enforcement Department, under article 11. The association's resources, and what the Real Estate Registration Department collects for its account on partition or on registration in a buyer's name, are set out in article 12.
Upper and lower storeys and a shared wall in the Civil Code
If one person has an upper storey and another a lower storey, the owner of the upper storey has a right of support in the lower, the ceiling belongs to the owner of the lower storey, the owner of the upper storey has the ordinary use of its surface, and the owner of the lower storey has a right in the upper storey that shelters it from sun and rain, under article 1082 of the Civil Code. If the lower and upper storeys share a single door, each may use it in common, under article 1083. If the owner of the lower storey demolishes it wrongfully, it must be rebuilt, and the owner may be compelled to do so, under article 1084. If the lower storey collapses or needs repair, its owner must rebuild or repair it. If the owner refuses and the owner of the upper storey carries out the work with that owner's permission or with the permission of the Court of First Instance, the latter may recover what was spent, at the customary amount, under article 1085.
The owner of the upper storey may not erect a new building in it, or increase its height, without the permission of the owner of the lower storey, unless this does not harm the lower storey. The owner of the lower storey may not do anything in it that harms the upper storey, subject to the special building laws, under article 1086. Each of the co-owners of a shared wall may place beams or the like on it to the same extent as the other. The cost of repairing or renewing the wall, if it is no longer fit for its purpose, is borne by them equally, under article 1087. The rules on raising the wall and on a shared private road are set out in articles 1088 to 1095. Those provisions are read with Law No. 61 of 2001 when the dispute concerns an upper and a lower storey, or a dividing wall. They are not a substitute for the regime of common parts and the owners' association in a partitioned building.
Legal basis and sources
- Law No. 61 of 2001 regulating ownership of floors and apartments in buildings (Iraqi Official Gazette, issue 3860 of 8/1/2001)
- Civil Code No. 40 of 1951 (Iraqi Official Gazette, issue 3015 of 8/9/1951) — Articles 1082–1095
- Real Estate Registration Law No. 43 of 1971 (Iraqi Official Gazette, issue 1995 of 10/5/1971)
Frequently asked questions
May the foundations, entrances, staircases and lifts be partitioned among the apartment owners?
No. The common parts mentioned in article 3 may not be partitioned. Each owner's share in them is in proportion to the value of the floor or apartment, and that share may not be disposed of separately from the unit, under article 4 of Law No. 61 of 2001.
Who administers the common parts in the building?
They are administered by the owners' association formed under article 9, which has legal personality for that purpose. Owners and actual occupiers are members, on the detail set out in the same article.
What applies if Law No. 61 of 2001 contains no provision?
The provisions of Real Estate Registration Law No. 43 of 1971 and of the other related statutes apply, under article 13. The rules on upper and lower storeys and on a shared wall in articles 1082 to 1095 of the Civil Code are read in the cases to which they apply.
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.
- 02A building permit from Amanat Baghdad or the municipalityA building permit from Amanat Baghdad or the municipal directorate, and how the building is then recorded in the real estate 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.
- 05Acquisitive possession of property and the passage of timeWhen an ownership claim against a possessor of unregistered property is not heard: fifteen years, or five with good faith and just title (art. 1158).