Heirs and the right to a property claim

Most ownership claims over property taken between 1968 and 2003 are brought today by the original owner's children or grandchildren, because the owner has usually died. That raises practical questions: must all heirs join? Who represents them? What about an heir abroad? The office of lawyer Ali Barakat, in Baghdad, al-Yarmouk, follows what the Property Claims Commission Law No. 13 of 2010 says on this.

One heir suing for the others

Article 19 provides that an heir may bring the case before commission branches on behalf of the other heirs. All heirs do not have to agree and sign together, nor issue powers of attorney to one of them; one may bring it. This matters for families spread across governorates and countries.

Proving standing and shares

An heir's standing is proved by the inheritance deed (qassam shar'i), issued by the Personal Status Court under its jurisdiction over proving death, settling estates and fixing inheritance shares in article 300(6) of the Civil Procedure Law No. 83 of 1969. If return is ordered, registration is made in the heirs' names according to their shares in the deed, even if only one of them brought the case. See documents for a property claim.

An heir living abroad

Article 18 has people living outside Iraq file through Iraqi diplomatic missions. Since the deadline for applications to the commission passed on 30/6/2011, new claims are brought in the civil courts under article 22, so an heir abroad sues through a duly authenticated power of attorney, or an heir in Iraq sues on behalf of all under article 19.

Heirs as the last owner

Heirs are not always the claimants. Sometimes the former regime gave a confiscated property to the families of its own victims, and those families are now the occupiers. Article 7(XII) lets the committee choose: give the property back to the original owner and pay the occupying heirs its current value, or leave it with them and pay the original owner instead. A different situation arises under article 7(VII), where the property had been sold back to the original owner or one of his heirs; there the registry simply puts the title back in their name if it is not already.

An heir who was not a party

One heir may bring the case and obtain a decision that affects another heir who knew nothing of it. Article 224(2) of the Civil Procedure Law allows an heir to use third-party objection where another heir represented them in a case brought by or against their predecessor and they were not served with the judgment; if they were served, they must use the other routes of challenge. Article 9 of the commission law lists third-party objection among the routes for challenging committee decisions.

Death of the claimant during the case

Article 6 of the commission law refers to the Civil Procedure Law where there is no special provision, so the death of a party during the case is dealt with under that law's rules, and the heirs take the deceased's place after proving their standing with the inheritance deed.

Where an heir is a minor

Where an heir is a minor or absent, a guardian, testamentary guardian or curator represents them, under article 4 of the Civil Procedure Law, which validates litigation by such persons regarding the property of a minor or absent person. Article 309 of the same law sends judgments against minors and absent persons to the Federal Court of Cassation for review where those concerned do not appeal them, and they are not carried out before being upheld.

Compensation awarded to heirs

Where compensation is awarded, the Ministry of Finance pays it under article 13, the commission hands it over once funded under article 13 of Instructions No. 5 of 2010, and it is divided among the heirs according to their shares. See enforcing a commission decision at the land registry, and for filing steps, filing a claim for return or compensation.

Legal basis and sources

1. Property Claims Commission Law No. 13 of 2010 (Official Gazette No. 4147 of 9/3/2010) — Articles 6, 7, 9, 13, 18, 19 and 22
2. Instructions No. 5 of 2010 facilitating the implementation of the Property Claims Commission Law (Official Gazette No. 4163 of 6/9/2010) — Article 13
3. Civil Procedure Law No. 83 of 1969 (Official Gazette No. 1766 of 10/11/1969) — Articles 4, 224, 300 and 309

Frequently asked questions

Related topics and articles

• 01Documents 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.
• 02Enforcing 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.
• 03Filing 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.
• 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.
• 05Objecting 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.

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

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