The commission claim versus an ownership case in the court of first instance

The label "ownership case" covers two different kinds of case in Iraq, and they are often confused. The first rests on the Property Claims Commission Law No. 13 of 2010; the second is an ordinary ownership case in the court of first instance under the general rules. The office of lawyer Ali Barakat, in Baghdad, al-Yarmouk, follows the difference between them, because choosing the wrong route can cost a claimant a long time.

Difference in subject

What opens the commission's door is not a quarrel over property but the State itself having taken it. Article 3 names the ways this happened: property confiscated or seized because of the owner's politics, ethnicity, religion or sect; property appropriated with nothing paid; expropriation that ignored the legal procedure; State land handed for nothing or next to nothing to people close to the old regime; and takings based on the old regime's orders or on decisions of the now-dissolved Revolutionary Command Council. An ordinary ownership case concerns a dispute between persons: a seller refusing to register, a co-owner claiming a share, a possessor claiming title by prescription, or a buyer under an informal contract. Acquisitive possession has its own page, acquiring ownership of property by possession.

Difference in period

A commission claim is limited to 17/7/1968 to 9/4/2003, with special committees for 14/7/1958 to 16/7/1968 under article 24. An ordinary ownership case is not tied to an era, only to the general rules on limitation and possession.

Difference in forum

Commission claims were brought before the judicial committees at commission branches, with appeals to the appeal panel formed under article 8. Since 30/6/2011 new applications are referred to the civil courts under article 22, but those courts decide them under Law No. 13 of 2010. The forum may be a civil court in both cases, but the governing law differs. Article 11 refers to the judicial committee cases covered by the law that were pending in the courts.

Difference in remedies

In an ordinary ownership case the court usually confirms ownership, annuls a transaction, or awards damages under the Civil Code. In a commission claim the remedies are precisely drawn in article 7: cancelling an unexecuted decision, returning ownership, compensation at the property's value on the date of the last inspection where it serves a public purpose, a choice between return and retention with compensation where it was sold on, and rules for substantial changes, demolition and rebuilding, and mortgages. Some paragraphs even value the consideration in gold, as with property sold back to the original owner and property expropriated contrary to procedure.

Difference where the State is involved

In a commission claim the Ministry of Finance pays compensation under article 13, and decisions obliging State departments to compensate or return property are subject to automatic cassation under article 10. Transfers of ownership are exempt from taxes and duties under article 12. These features do not necessarily accompany an ordinary ownership case.

Expropriation: which route?

An expropriation carried out under the Expropriation Law No. 12 of 1981 and its procedures is dealt with under that law; see expropriation for public benefit and compensation. An expropriation carried out contrary to legal procedure during the covered period falls under article 3(1)(b) of the commission law and is dealt with under article 7(XI), which distinguishes whether the expropriating body still needs the property and requires it to state its need within sixty days.

How to choose

The first question: how did the property leave its owner's hands? If by an act of authority of a kind listed in article 3 and within the stated period, the route is Law No. 13 of 2010. If by a dealing between persons, the route is the ordinary case. See the commission: who goes to it and the limits of its jurisdiction.

Legal basis and sources

1. Property Claims Commission Law No. 13 of 2010 (Official Gazette No. 4147 of 9/3/2010) — Articles 3, 7, 8, 10, 11, 12, 13, 22 and 24
2. Instructions No. 5 of 2010 facilitating the implementation of the Property Claims Commission Law (Official Gazette No. 4163 of 6/9/2010)
3. Civil Procedure Law No. 83 of 1969 (Official Gazette No. 1766 of 10/11/1969)
4. Expropriation Law No. 12 of 1981 (Official Gazette No. 2817 of 16/2/1981)

Frequently asked questions

Related topics and articles

• 01The Property Claims Commission: who goes to it and the limits of its jurisdictionWho goes to the Property Claims Commission and the limits of its jurisdiction under Law No. 13 of 2010: independence and attachment to parliament, the covered period, judicial committees, and referral to the civil courts.
• 02Expropriation for public benefit and compensationExpropriation and compensation under Law 12 of 1981: an agreed taking, the Court of First Instance, the Valuation Board, and registration.
• 03Acquisitive 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).
• 04Filing a claim for return of property or compensationHow a claim for return of property or compensation is filed under the Property Claims Commission Law No. 13 of 2010: the form, the detailed register statement, and referral to the civil courts after 30/6/2011.
• 05Documents needed for a property claim before the commissionThe documents a claim for return of property or compensation rests on under the Property Claims Commission Law: the register entry, the taking decision, the inheritance deed, and proof under the Evidence Law.

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

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