Compensation instead of return: when it arises
Someone whose property was taken hopes to recover the property itself, but decades later it may have become a school, been sold twice, or been demolished and replaced by a new building. The Property Claims Commission Law No. 13 of 2010 does not ignore that reality: it makes compensation the alternative to return in specified cases. The office of lawyer Ali Barakat, in Baghdad, al-Yarmouk, follows these cases under article 7 of the law.
Property put to public use
Article 7(II): where confiscated or appropriated property is used for a public or charitable purpose, the original owner receives its value on the date of the last inspection, and the property continues to serve the purpose assigned to it. A hospital or school standing on taken property is not vacated; the remedy is compensation.
Property sold on
Article 7(III): where the property was sold to a third party without substantial changes, the committee chooses between returning it to the original owner and compensating the last owner, or leaving it with the last owner and compensating the original owner, in either case at the value on the date of the last inspection. The law balances the original owner's right against the good faith of the later buyer.
Substantial changes
Article 7(IV): where substantial changes increased the property's value, the committee may return it to the original owner, compensating the last owner and making the original owner pay for the standing improvements after allowing for depreciation; or leave it with the last owner and compensate the original owner at its value in the state it was in at the time of confiscation or appropriation, deducting depreciation from the sum paid to the current owner.
Demolition, rebuilding and built-on land
Article 7(IX): where the property was demolished and a new building put up, it is either returned to the original owner after the owner pays for the new building less the value of the old one, or the original owner is compensated at its value in the state it was in at the time of the taking. Article 7(X): where the property is a plot on which the last owner built, if the buildings are worth more than the land, the property stays with the last owner and the original owner receives the value of the land; if the land is worth more, it is registered to the original owner after paying for the buildings, or the original owner receives the value of the land.
Merged property
Article 7(V): where another plot was added and merged, and the plots can be separated, one of the committee's options is to compensate the original owner for the original plot at its value on the date of the last inspection.
Unlawful expropriation and gold valuation
Article 7(XI): where property was expropriated contrary to legal procedure and the expropriating body needs it, the original owner receives the difference between the real value at expropriation and the expropriation compensation, valued in gold at the time of expropriation and at its value on the date of the last inspection. The expropriating body must state its need within sixty days, failing which the property is returned. Article 7(VII) also values in gold the sale consideration where property was sold back to its original owner.
Heirs of victims
Article 7(XII): where the property was transferred to heirs of victims of the former regime, the committee may return it to the original owner and compensate the heirs, or compensate the original owner and leave the property with the transferees.
The date of the last inspection and who pays
Where the committee head bases the decision on a later inspection rather than on the filing date, article 4 of Instructions No. 5 of 2010 makes that last inspection the valuation date. Article 13 of the law makes the Ministry of Finance pay compensation awarded by final decisions, and article 13(II) gives anyone harmed by a committee decision under CPA Regulation No. 12 of 2004 the right to claim compensation where the party responsible or the amount at the time of confiscation was not determined, or the claim was rejected. See enforcing a commission decision at the land registry; for coverage, properties covered and properties outside jurisdiction; and to challenge the amount, objecting to and appealing commission decisions.
Legal basis and sources
- Property Claims Commission Law No. 13 of 2010 (Official Gazette No. 4147 of 9/3/2010) — Articles 7 and 13
- Instructions No. 5 of 2010 facilitating the implementation of the Property Claims Commission Law (Official Gazette No. 4163 of 6/9/2010) — Article 4
Frequently asked questions
Is taken property that became a State school vacated?
No. The original owner receives its value on the date of the last inspection and the property keeps its use, under article 7(II).
On what date is compensation assessed?
On the date of the last inspection, defined in article 4 of the instructions as the assessment date the committee head adopts as the basis of the decision.
When is compensation valued in gold?
In cases set out in article 7, including unlawful expropriation in paragraph XI and property sold back to its original owner in paragraph VII.
Who decides between return and compensation where the property was sold on?
The judicial committee, which chooses between the two options under article 7(III).
Related topics and articles
- 01Enforcing a commission decision at the land registryEnforcing Property Claims Commission decisions once final: re-registration in the original owner's name, release from mortgage, exemption from taxes and duties, and payment of compensation by the Ministry of Finance.
- 02Properties covered and properties outside jurisdictionWhich properties the Property Claims Commission Law No. 13 of 2010 covers and which it excludes: confiscation for political reasons, appropriation without compensation, unlawful expropriation, transfer to regime associates, and the agrarian reform exclusion.
- 03Objecting to and appealing commission decisionsHow decisions of Property Claims Commission judicial committees are challenged: the appeal panel, objection to default judgments, third-party objection, retrial, cassation, and automatic cassation where the State is ordered to pay or return.
- 04The 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.
- 05Filing 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.