Waqf Endowments
Waqf in Iraq is not handled by a single body. Since 2012 its administration has been divided among three separate offices, each created by its own law. All three laws were issued together and published in Official Gazette No. 4254 on 15/10/2012: Law No. 56 for the Sunni Endowment Office, Law No. 57 for the Shia Endowment Office, and Law No. 58 for the Office of Endowments of the Christian, Yazidi and Sabean Mandaean Religions. Alongside them, the Endowments Administration Law No. 64 of 1966 still governs much of the day-to-day detail: auditing trustees, leasing, substitution of endowed property, and encroachment. The Real Estate Registration Law No. 43 of 1971 then decides how an endowment is entered in the land register and which dispositions over it are permitted.
The office of lawyer Ali Barakat, in Baghdad, al-Yarmouk, follows these texts for people facing a question about endowed property: a tenant who wants to understand the basis of a lease, a descendant asking about a share in a family endowment, a trustee facing an audit, or an owner who finds an endowment annotation on a title. This page sets out the overall map; each step is treated in the linked topics below.
Three offices, three scopes
The Sunni Endowment Office is attached to the Council of Ministers, has legal personality and is headed by a president of ministerial rank, under articles 1 and 4 of Law No. 56 of 2012. Its aims in article 2 include organising the administration and investment of endowments, carrying out the conditions set by founders, and supervising attached endowments. Under article 20 it replaced the former Ministry of Endowments and Religious Affairs, whose Law No. 50 of 1981 was repealed by article 22. See the Sunni Endowment Office.
The Shia Endowment Office manages endowments that have no trustee of their own and follows the prevailing opinion of Shia jurisprudence, under articles 2 and 3 of Law No. 57 of 2012. A distinctive rule in that law is article 14: a trustee is appointed or removed according to the prevailing view of Imami jurists, and where that view is unclear the matter goes to the highest religious authority. The holy shrines have legal personality under article 24. See the Shia Endowment Office.
The Office of Endowments of the Christian, Yazidi and Sabean Mandaean Religions is headed by a person nominated by the religious authorities of the three faiths. Its council includes a representative of each faith, and its formations include a directorate for the affairs of each religion, under articles 4, 6 and 9 of Law No. 58 of 2012. See Christian, Yazidi and Sabean Mandaean endowments.
The kinds of endowment in the 1966 law
Article 1 of the Endowments Administration Law distinguishes a valid endowment from an invalid one, and a controlled endowment, which the endowment office runs directly, from an attached endowment, which has its own trustee and is supervised by the office. Attached endowments include the family endowment, whose benefit goes to the founder's descendants. The distinction matters in practice. It tells you who leases the property, who must account for its income, and who is the right opponent in court when a dispute arises.
The Real Estate Registration Law follows the same lines. Article 6 lists valid and invalid endowments among the categories of real property. Article 256 requires the registration of an endowment over owned property to show its kind, its conditions and the name of its trustee. Article 257 forbids creating an endowment over the right of disposal in state-owned (amiri) land, because an endowment can only be made out of full ownership.
The trustee: who appoints and who audits
The trustee (mutawalli) runs the endowment and speaks for it in court. Two tracks watch over him: the courts, where disputes about who holds the trusteeship and whether he should stay are decided, and the endowment offices, which review his yearly accounts through committees chaired by a judge. Each track has its own route and a very different time limit. See appointing and removing a trustee.
Leasing and investing endowed property
Leasing endowed property follows a special regulation under article 8 of the Endowments Administration Law, and a lease for more than three years depends on a decision of the board of the authority for administering and investing endowment funds. The Sunni and Shia offices each include such an investment authority among their formations, under article 9 of each law. A tenant who breaches the lease, or stays on after it ends, falls under articles 13 and 14 of the 1966 law. See leasing endowed property.
Substitution and building
Sometimes an endowed asset can no longer serve its purpose: a shop in a dead market, a plot cut through by a new road. The law then allows it to be exchanged for something more useful to the endowment, under the office council's control and with judicial review, and allows building on endowed land in defined ways. See substitution of endowed property and building on endowed property.
Registration with the Real Estate Registration Directorate
Many properties endowed long ago were never carried into the land register as endowments, and that is where buyers' and heirs' problems begin. The registration law offers a route to record them on the strength of a Sharia deed or a final judgment, and narrows what can be done with them once recorded. Steps and papers are in registering endowed property.
How an endowment is created
An endowment is created by a deed organised by the competent court; article 301 of the Civil Procedure Law places the drawing up of endowment deeds with the Sharia court. Article 10 of the Endowments Administration Law adds that Sharia deeds concerning an endowment are not carried out until the endowment office has been notified, so that the administration knows what falls under its care or supervision. An endowment cannot be made by an electronic document, because article 3(2) of the Electronic Signature and Electronic Transactions Law No. 78 of 2012 excludes the making of wills and endowments from that law. In practice, a founder starts at the court, takes the deed to the registration directorate to annotate the title, and the competent office is then informed according to the founder's school or faith. Each step leaves a paper trail that is read again whenever a later dispute arises over the founder's conditions or over who is entitled to the income.
Disputes over the status of property
An owner or heir may discover an endowment annotation on a title, or an endowment office may claim that property registered as free ownership was originally endowed. Article 13 of both Law No. 56 and Law No. 57 of 2012 authorises each office to sue when an endowment has been turned into free ownership. Such disputes are decided by the courts, on the evidence of deeds and registers. See disputes over whether property is endowed.
Encroachment on endowed property
Article 12 of the Endowments Administration Law punishes encroachment on endowed property with imprisonment and makes the occupier pay twice the fair rent for the period of occupation. The office first serves a warning to vacate within thirty days. If the property is not vacated, a complaint goes to the investigation court, and the case is heard as a matter of urgency.
Challenging decisions of the offices
An administrative decision issued by an endowment directorate about a trustee, a lease or a substitution is read against the route set by the text that governs it: an objection to the office council against audit-committee decisions, a case in the Personal Status Court for trusteeship of family endowments, and a civil case where ownership itself is disputed. See challenging decisions of an endowment office.
Tax exemptions
Article 14 of the Sunni office law, article 16 of the Shia office law and article 12 of the law on the Christian, Yazidi and Sabean Mandaean office exempt endowment assets from taxes and duties within the limits each article draws. It is worth reading the relevant exemption before calculating any liability on endowed property.
Papers usually needed to study an endowment file
An endowment file rests on documents: the Sharia deed or endowment deed, an extract of the title from the Real Estate Registration Directorate, letters from the endowment office, any lease, and the decisions of audit committees. Without them it is hard to know what kind of endowment is involved or who represents it. The office can be reached on +964 770 848 7526 or at alibaltaae@gmail.com.
Legal basis and sources
- Sunni Endowment Office Law No. 56 of 2012 (Official Gazette No. 4254 of 15/10/2012)
- Shia Endowment Office Law No. 57 of 2012 (Official Gazette No. 4254 of 15/10/2012)
- Law No. 58 of 2012 on the Office of Endowments of the Christian, Yazidi and Sabean Mandaean Religions (Official Gazette No. 4254 of 15/10/2012)
- Endowments Administration Law No. 64 of 1966 (Official Gazette No. 1293 of 31/7/1966)
- Real Estate Registration Law No. 43 of 1971 (Official Gazette No. 1995 of 10/5/1971) — Articles 56 and 256–260
- Electronic Signature and Electronic Transactions Law No. 78 of 2012, article 3
- Civil Procedure Law No. 83 of 1969 (Official Gazette No. 1766 of 10/11/1969) — Articles 4, 300, 301 and 309
Frequently asked questions
Does a tenant of endowed property gain ownership after a long lease?
No. An endowment cannot be acquired through a lease, and articles 13 and 14 of the Endowments Administration Law deal with the tenant who breaches the lease or stays after it ends.
Which court removes the trustee of a family endowment?
The Personal Status Court, under article 300(4) of the Civil Procedure Law, which also covers appointing and auditing the trustee.
Can state-owned amiri land be endowed?
Article 257 of the Real Estate Registration Law forbids endowing the right of disposal in amiri land, since an endowment can only be made out of ownership.
Do the three offices fall under one ministry?
No. Each office has its own law and legal personality, and the Sunni and Shia offices are attached to the Council of Ministers under article 1 of each law.
Topics in this area
- 01The Sunni Endowment Office: jurisdiction and property transactionsThe jurisdiction of the Sunni Endowment Office under Law No. 56 of 2012: its council, its investment authority, controlled and attached endowments, and property transactions.
- 02The Shia Endowment Office: jurisdiction and property transactionsThe jurisdiction of the Shia Endowment Office under Law No. 57 of 2012: endowments without a private trustee, appointing and removing trustees, sale and substitution, and the holy shrines.
- 03The Office of Endowments of the Christian, Yazidi and Sabean Mandaean ReligionsThe Office of Endowments of the Christian, Yazidi and Sabean Mandaean Religions under Law No. 58 of 2012: attachment, council, a directorate for each faith, and support for trustees.
- 04Leasing endowed property: the competent body and the form of the contractLeasing endowed property under article 8 of the Endowments Administration Law No. 64 of 1966: who leases, leases over three years, and what follows a tenant breach or the end of the term.
- 05Substitution of endowed property and its considerationSubstitution of endowed property under article 6 of the Endowments Administration Law: council decision, property or cash consideration, instalments and mortgage, and cassation review of substitution deeds.
- 06Trusteeship of an endowment and removal of the trusteeWho appoints, removes and audits a waqf trustee in Iraq: the Personal Status Court, the endowment offices and trustee-audit committees, and the time to object.
- 07Registering endowed property with the Real Estate Registration DirectorateRegistering an endowment under the Real Estate Registration Law No. 43 of 1971: fresh registration, registering an endowment over registered property, cemeteries, and permitted dispositions.
- 08Disputes over the status or boundaries of an endowmentDisputes over whether property is endowed or owned, and over its boundaries and kind: the office suit where an endowment became private property, the court of first instance in liquidating Sunni family endowments, and evidence.
- 09Building on or altering endowed propertyBuilding, repairing or altering endowed property: office approval for the trustee, the office council's decision, building rights and long leases, and recording buildings.
- 10Challenging decisions of the competent endowment officeRoutes for challenging endowment office decisions: objecting to trustee-audit committee decisions within ten days, grievance and appeal to the Administrative Court, the Personal Status Court, and cassation.