Disputes over whether property is waqf, and its boundaries

In briefA dispute arises when property registered as owned is said to be endowed in origin, or when the kind, boundaries or conditions of an endowment are contested. The office laws authorise a suit where an endowment has been turned into free ownership, and the decree permitting the liquidation of family endowments gives the court of first instance where the endowment lies power to prove the endowment and determine its assets, kind and conditions in Sunni family and mixed endowments, on the basis of judgments, register entries, deeds and practice.

A buyer may purchase a house and discover years later that an endowment office claims it. Heirs may inherit land and disagree whether it was their father's property or an endowment for his descendants. Or the endowment may be clear while its boundaries, or whether it is a family or a mixed endowment, are in dispute. The office of lawyer Ali Barakat, in Baghdad, al-Yarmouk, follows the texts that govern these disputes for people on either side.

When an endowment is turned into private property

Article 13 of the Sunni Endowment Office Law No. 56 of 2012 and article 13 of the Shia Endowment Office Law No. 57 of 2012 authorise each office to sue where an endowment has been turned into free ownership. Article 4(1) of the Endowments Administration Law No. 64 of 1966 had likewise provided that the endowment body sues to prevent an endowment being turned into private property by encroachment. The office is therefore a principal party in defending the endowed status of property, and a buyer facing such a suit relies on the title deed and the register.

Liquidating Sunni family and mixed endowments

Decree No. 1 of 1955 permitting the liquidation of family endowments, published in Official Gazette No. 3665 on 19/7/1955, defines family, charitable and mixed endowments in article 1. Following its amendment by Law No. 41 of 2016, published in Gazette No. 4431 on 16/1/2017, article 2 limits its scope to family and mixed endowments belonging to the Sunni endowment and expressly excludes family and mixed endowments belonging to the Shia endowment. Charitable endowments remain subject to Sharia and their own laws.

Article 3 requires the court, at the request of a beneficiary or a beneficiary's heir, to liquidate a family or mixed endowment. Article 4 gives liquidation cases to the courts of first instance where the endowment lies, and gives that court jurisdiction to prove the endowment where its validity is challenged, to identify the endowed assets, to state whether the endowment is family or mixed, and to establish the founders' conditions of entitlement. Article 5 gathers other cases about the same endowment before the liquidation court.

The evidence a decision rests on

Article 10(1) of the decree lists what the court relies on in identifying the charitable purpose and its share and the beneficiaries and their shares: court judgments, land-register entries, registered endowment deeds, all legally recognised documents, and established practice. Article 10(2) allows practice to be proved by any means of evidence. A file in this kind of dispute is built on old and current register entries, a copy of the endowment deed from the court register, and how the income has actually been distributed.

Appealing a liquidation judgment

Article 11 of the decree makes liquidation judgments open to cassation within thirty days from the day after the judgment is pronounced in the parties' presence, or from the day after notification of a default judgment. Other routes do not apply, except a request to correct the cassation decision within stated limits.

A living founder's revocation

Article 14 of the decree gives a living founder the right to revoke the endowment by application to the court of first instance to annul the endowment deed and return the property to the founder's ownership. A copy of the decision goes to the court that issued the deed, to annotate its register, and to the Real Estate Registration Directorate, to correct the entry. Its counterpart in the Real Estate Registration Law is article 259, which bases registration of a revocation on a deed or final judgment.

Proper parties in a mixed endowment

Article 1(c) of the decree provides that litigation over a mixed endowment is not properly constituted without the presence of the director of endowments or a representative. In cases about endowed property generally, the trustee is the proper party under article 4 of the Civil Procedure Law No. 83 of 1969. See appointing and removing a trustee; for registration, registering endowed property; and for administrative challenges, challenging decisions of an endowment office.

Legal basis and sources

Frequently asked questions

Does the liquidation decree apply to Jaafari endowments?

No. Since article 2 was amended by Law No. 41 of 2016, the decree does not cover family and mixed endowments belonging to the Shia endowment.

Which court decides whether a Sunni family endowment exists when its validity is challenged?

The court of first instance in whose area the endowment lies, under article 4 of the decree.

How long is the period to appeal a liquidation judgment?

Thirty days from the day after a judgment given in the parties' presence is pronounced, or after notification of a default judgment, under article 11.

Can an endowment office claim property registered as private ownership?

The office laws authorise it to sue where an endowment has been turned into free ownership, and the courts decide in light of the deeds and register entries.

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

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Disputes over the status or boundaries of an endowment