Enforcing a commission decision at the land registry
A judgment for the original owner does not return the property the moment it is issued. There is a further step at the Real Estate Registration Directorate, and sometimes one at the Ministry of Finance. The office of lawyer Ali Barakat, in Baghdad, al-Yarmouk, follows what the Property Claims Commission Law No. 13 of 2010 and its instructions provide on enforcement, for those who won and those who lost.
When the decision is enforced
A decision is enforced once it becomes final. Article 8(4) makes an appeal panel decision final where it upholds or amends. A decision obliging State departments to compensate or return property is subject to automatic cassation under article 10, so it is not enforced before the appeal panel reviews it. See objecting to and appealing commission decisions.
Forms of enforcement on the register
What is carried out at the registration directorate depends on what the committee decided under article 7. It may be the cancellation of an unexecuted confiscation decision, in which case any seizure or allocation annotated on the property is lifted. It may be the return of ownership to the original owner, in which case the property is registered in that owner's name. Paragraph VII provides for re-registering the property in the name of the original owner or heirs if it is not in their name, where it had been sold back to the owner or an heir after confiscation. Paragraph VIII provides for re-registering property transferred free or for a token sum in the original owner's name, where it is still registered to the transferee. Or the decision may leave the property with the last owner and compensate the original owner, in which case the entry does not change and enforcement is financial.
Mortgaged property
Article 7(VI) deals with property burdened by a loan or mortgage registered at the competent registration directorate before 9/4/2003: it is returned to the original owner free of the loan or mortgage, after deducting its value from what the last owner receives in compensation. Enforcement here includes lifting the mortgage annotation.
Merged and separated plots
Paragraph V deals with property merged with another plot. If the plots cannot be separated, the property returns to the original owner and the added plot is registered in that owner's name, with an obligation to pay its value. If separation is possible, the original plot is returned and the added one stays with the last owner, or the original owner is compensated. Enforcing this kind of decision may therefore require a subdivision or merger transaction at the directorate.
Exemption from taxes and duties
Article 12 exempts the transfer of property under a final judgment issued under the law from the taxes and duties prescribed by law. An owner recovering property does not bear the usual transfer costs.
Cash compensation
Article 13 makes the Ministry of Finance responsible for paying compensation on the basis of final decisions. Article 13 of Instructions No. 5 of 2010 has the commission hand over awarded compensation once the Ministry of Finance provides the funds. A person awarded compensation therefore follows up with the commission, and delays in payment are linked to the Ministry providing the funds. See compensation instead of return.
Heirs at the enforcement stage
If the decision was given in favour of a predecessor who has since died, or for heirs together, registration is made in the heirs' names according to their shares. Article 19 lets one heir sue for the others, but the register entry rests on the inheritance deed. See heirs and the right to a property claim.
Legal basis and sources
- Property Claims Commission Law No. 13 of 2010 (Official Gazette No. 4147 of 9/3/2010) — Articles 7, 8, 10, 12, 13 and 19
- Instructions No. 5 of 2010 facilitating the implementation of the Property Claims Commission Law (Official Gazette No. 4163 of 6/9/2010) — Article 13
- Real Estate Registration Law No. 43 of 1971 (Official Gazette No. 1995 of 10/5/1971)
Frequently asked questions
Does the original owner pay transfer duties on recovering the property?
No. Article 12 exempts transfer under a final judgment from the taxes and duties prescribed by law.
Who pays the compensation awarded?
The Ministry of Finance; the commission hands it over once funded, under article 13 of the law and article 13 of the instructions.
What happens to an old mortgage on returned property?
If registered before 9/4/2003, the property is returned free of it and its value is deducted from the last owner's entitlement, under article 7(VI).
Is a decision against a State department enforced immediately?
No. It is subject to automatic cassation under article 10 before enforcement.
Related topics and articles
- 01Objecting 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.
- 02Compensation instead of return: when it arisesWhen a Property Claims Commission committee awards compensation instead of returning property under article 7 of Law No. 13 of 2010: public use, sale to third parties, substantial changes, demolition and rebuilding, and the date of the last inspection.
- 03Heirs and the right to a property claimHow the right to claim return of taken property or compensation passes to heirs under the Property Claims Commission Law: one heir suing for all, the inheritance deed, third-party objection, and heirs abroad.
- 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.