An insurance mortgage and enforcement attachment of property
The office of lawyer Ali Barakat in Baghdad sets out the difference between an insurance mortgage and enforcement attachment of immovable property, under Civil Code No. 40 of 1951 and Enforcement Law No. 45 of 1980. The page identifies the nature of each. It is not a model mortgage contract or attachment application.
An insurance mortgage concludes only by registration
An insurance mortgage is a contract by which the creditor acquires, over immovable property set aside for payment of the debt, a real right under which that creditor has priority over ordinary creditors and creditors below him in rank in recovering the right from the price of that property in whatever hands it may be, under article 1285 of the Civil Code. An insurance mortgage does not conclude except by registration at the Real Estate Registration Department. Each of the parties must appoint an elected domicile in the town where the registration is completed, and each is given a copy of the mortgage deed signed by both of them, after their declarations are taken in the presence of witnesses. The costs of the contract fall on the mortgagor unless otherwise agreed, under article 1286.
An insurance mortgage may only be created over immovable property or a real right over immovable property. The mortgaged property must be something that may lawfully be dealt in and sold, and it must be specified, under article 1290. An insurance mortgage is therefore an accessory real right that arises by contract and by registration, not by a privately written paper alone, and not by a later mark in an enforcement file alone.
Enforcement attachment of immovable property
Enforcement attachment of immovable property is a different path. Its setting is enforcement proceedings after there is an instrument capable of enforcement. If attachment of the property is ordered, the Enforcement Officer notifies the Real Estate Registration Department so that an attachment mark is placed on the property's register, and the debtor is notified of the attachment and of the requirement to pay the debt and its accessories within ten days from the day after the date of notification, otherwise the attached property is sold, under articles 86 and 87 of Enforcement Law No. 45 of 1980, published in the Iraqi Official Gazette, issue 2762, of 17/3/1980.
That attachment is a restriction placed on the register in the course of enforcement. It is not an insurance mortgage created by agreement of the debtor and the creditor. An enforcement attachment does not take the place of creating a mortgage under articles 1285 and 1286, and a mortgage does not take the place of attachment and sale in enforcement where the creditor's path is compulsory enforcement. Attachment of movables, wages and accounts is explained on the page Attaching movables, wages and accounts, and enforcement directorates are explained on the page Enforcement directorates in Baghdad.
| Subject | Period stated in the text |
|---|---|
| Enforcement Law, article 87 | Ten days from the day after the debtor is notified of the attachment, otherwise the attached property is sold |
For the mortgage, the Real Estate Registration Department in whose area of work the property lies is approached in order to create the right. For enforcement attachment, the Enforcement Officer and the Enforcement Directorate are approached, and the Real Estate Registration Department is notified so that the mark is placed. The two departments are not substitutes for one another.
Legal basis and sources
- Civil Code No. 40 of 1951 (Iraqi Official Gazette, issue 3015 of 8/9/1951) — Articles 1285, 1286 and 1290
- Enforcement Law No. 45 of 1980 (Iraqi Official Gazette, issue 2762 of 17/3/1980) — Articles 86 and 87
Frequently asked questions
Is a written agreement to mortgage a property enough, without registration?
No. An insurance mortgage does not conclude except by registration at the Real Estate Registration Department, under article 1286 of the Civil Code. An unregistered agreement does not create this real right.
What is the difference between a mortgage mark and an attachment mark on the property register?
An insurance mortgage is a real right created by contract and by registration for the mortgagee, under articles 1285 and 1286. An enforcement attachment mark is placed on the register by the Enforcement Officer in the course of enforcement, and the debtor is given ten days from the day after notification to pay the debt, otherwise the property is sold, under articles 86 and 87 of the Enforcement Law.
Does an insurance mortgage dispense with approaching an Enforcement Directorate?
The mortgage fixes the creditor's rank against the price of the property in whatever hands it may be, under article 1285. Compulsory enforcement and sale of the attached property follow the Enforcement Law. Creation of the mortgage is distinct from attachment and sale proceedings.
Related topics and articles
- 01Real 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.
- 02Sale 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.
- 03Attaching movables, wages and accounts under the Enforcement LawAttaching a debtor’s movables, wages and funds held by a third party, including an account, under Law 45/1980: limits, exemptions and periods.
- 04What 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.
- 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.