Preemption of property: who may claim it and when the claim is not heard
The office of lawyer Ali Barakat in Baghdad sets out the rules on preemption of immovable property as they appear in Civil Code No. 40 of 1951, published in the Iraqi Official Gazette, issue 3015, of 8/9/1951. The page identifies who has the right and when the claim is not heard. It is not a model petition.
Who has the right of preemption
Preemption is the right to take the sold property, even against the buyer's will, for the price paid and ordinary expenses, under article 1128. The right of preemption is limited to a co-owner of a shared dwelling, provided that person does not independently own a house to live in. An apartment is treated as a dwelling for the purposes of this rule, under article 1129. After its amendment, the text no longer leaves preemption open to every neighbour, or to every co-owner of any immovable property. It confines the right to that case.
Preemption is established only by the sale of the property over which preemption is claimed, with the ground for the right existing at the time of the sale, under article 1133, first paragraph. The property over which preemption is claimed must be owned immovable property, and its sale must have been completed lawfully. The property on which the pre-emptor relies must belong to the pre-emptor at the time of the sale and must remain owned by that person until judgment or agreement on the preemption, under paragraph 2. Once preemption is established, it is not invalidated by the death of the seller, the buyer or the pre-emptor, under paragraph 3. Preemption cannot be divided: the pre-emptor may not claim part of the property and leave the rest. If, however, there are several buyers and one seller, the pre-emptor may take the share of some of them, even if it is undivided, and leave the rest, under article 1135. None of the pre-emptors may assign the right to a stranger or to another pre-emptor; if that is done, the right is lost, under article 1136.
Periods and cases in which the claim is not heard
A person who wishes to take by preemption must announce that wish to the seller and the buyer, or to the Real Estate Registration Department, within fifteen days from being officially warned of the sale by the seller or the buyer, otherwise the right is lost. The warning must contain a clear description of the property sold, a statement of the price and the terms of the sale, and the name and residence of the seller, otherwise the warning is void, under article 1138.
When bringing the preemption claim, the pre-emptor must deposit in the court treasury of the court in whose area the property lies a sum equal to half the true price at which the sale was made; if the deposit is not made, the preemption is lost, under article 1140. The pre-emptor's ownership of the property is established when the judgment awarding preemption is enforced by registration at the Real Estate Registration Department, or upon registration where the parties agree on the preemption, under article 1141.
A preemption claim is not heard in the cases set out in article 1134, including: where the sale was by public auction through the courts or the administration; where it took place between spouses, or between ascendants and descendants, or between collaterals up to the fourth degree; where the property was sold to be a place of worship or to be attached to a place of worship and was registered at the Real Estate Registration Department on that basis; where the pre-emptor waived the right expressly or by implication, even before the sale; where the property relied on for preemption is a waqf; and where six months have passed from the day the sale was completed, a time limit that runs even against wards and absentees.
| Article | Period |
|---|---|
| 1138 | Fifteen days from the official warning to announce the wish, otherwise the right is lost |
| 1134, paragraph waw | Six months from the day the sale was completed, after which the preemption claim is not heard |
The pre-emptor stands in the buyer's place toward the seller in all rights and obligations, but may not benefit from a delay granted to the buyer for payment of the price unless the seller agrees, under article 1142. If the buyer built or planted before being notified of the wish to take by preemption, the pre-emptor must pay the amount by which the property's value increased because of the building or planting. If the building or planting took place after notification of the wish, the pre-emptor may demand removal; if removal would harm the property, the pre-emptor may keep the building or planting at their value as due for removal, under article 1143. No transfer of ownership by the buyer, and no real right created by the buyer over the property, is effective against the pre-emptor if it was completed after notification of the wish to take by preemption, under article 1144.
Legal basis and sources
Frequently asked questions
Does a neighbour, or a co-owner of land that is not a dwelling, have a right of preemption?
Article 1129 limits the right of preemption to a co-owner of a shared dwelling who does not independently own a house to live in, and an apartment is treated as a dwelling.
What follows if fifteen days pass after the official warning?
The person who wishes to take by preemption loses the right if that wish is not announced to the seller and the buyer, or to the Real Estate Registration Department, within fifteen days from the official warning of the sale, under article 1138. The warning itself is void if it does not contain the particulars required by the article.
When is a preemption claim not heard because time has passed?
The claim is not heard if six months have passed from the day the sale was completed, and that time runs even against wards and absentees, under article 1134, paragraph waw. When bringing the claim, the pre-emptor must deposit half the true price, otherwise the preemption is lost, under article 1140.
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 promise to sell and how it differs from a completed saleA preliminary agreement under Civil Code article 91, and a completed sale of land that concludes only by registration under articles 90 and 508.
- 03Real 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.
- 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.
- 05Sale 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.