Registering endowed property with the Real Estate Registration Directorate
Entering an endowment in the land register is what protects an endowed asset from being sold or mortgaged as if it were ordinary property. The Real Estate Registration Law No. 43 of 1971, published in Official Gazette No. 1995 on 10/5/1971, gives the endowment its own provisions, both in the chapter on fresh registration and in the chapter on endowments. The office of lawyer Ali Barakat, in Baghdad, al-Yarmouk, follows these provisions for people who want to register an endowment and for buyers who find an endowment annotation on a title they are considering.
The endowment among categories of property
Article 6 of the law lists valid and invalid endowments among the categories of real property. Article 1 of the Endowments Administration Law No. 64 of 1966 defines a valid endowment as an asset that was owned and then endowed to a purpose, and an invalid endowment as the right of disposal and the land itself in amiri land set aside and allocated to a purpose. The same article counts invalid endowments among controlled endowments, together with valid endowments for which no trusteeship was stipulated or whose trusteeship conditions have run out. The category determines which dealings over the property are possible.
Fresh registration of unregistered endowed property
Article 56 deals with endowed property that has not yet entered the register. Paragraph 1 has it registered afresh on the basis of Sharia deeds or judgments that have become final, in the name of the founding party and the beneficiary if it is not a controlled endowment, and in the name of the endowments directorate if it is. Paragraph 2 registers unregistered mosques and religious and charitable institutions in the name of the founding party and beneficiary, or of the endowment directorate if that party is unknown. Paragraph 3 registers a community's endowment in the name of the legally recognised community. Paragraph 4 covers buildings or plantings lawfully owned by individuals on land under a valid endowment: the land is registered and the ownership of those buildings and plantings, and the rights they created, are recorded.
Cemeteries
Article 57 registers cemeteries actually used for burial under local custom. Public cemeteries go in the name of the endowments directorate as controlled endowments. Private cemeteries within towns and villages go in the name of the family or body that set them aside, as attached endowments. Foreigners' cemeteries follow ratified agreements.
Registering an endowment over registered property
Article 256 governs registering an endowment over a registered ownership right on the basis of a Sharia deed or a final, enforceable court judgment, without taking an acknowledgement. An attached endowment is registered in the name of the founding party and beneficiary, stating the kind of endowment, its conditions and the trustee. A controlled endowment is registered in the name of the endowments directorate with the founder's conditions. The register entry therefore carries the conditions and the trustee, and that is what is consulted in any later dispute.
What cannot be registered as an endowment
Article 257 bars registering an endowment over the right of disposal in amiri land and similar land, or over buildings or plantings on it. A holder of a disposal right in amiri land cannot endow it, because the holder does not own the land itself.
Permitted dispositions over endowed property
Article 258 bars dispositions over endowed property and the creation of any real rights over it, except where the law allows, such as substitution, winding up a family endowment, and creating a building right (musataha). Article 229 allows a building right to be created over land under a valid endowment by registering the agreement between the landholder and the builder. See substitution of endowed property and building on endowed property.
Revocation and community endowments
Article 259 bases the registration of revocation of an endowment on a deed from a competent court or a final judgment. Article 260 subjects the registration of endowments of legally recognised Iraqi communities and their members to their own legal rules. Where a disagreement arises over the validity or boundaries of an endowment, see disputes over whether property is endowed.
Notifying the endowment body
Article 10 of the Endowments Administration Law No. 64 of 1966 provides that Sharia deeds concerning an endowment are not carried out before the endowment body is notified. Registration in the land register and notice to the office go hand in hand.
Legal basis and sources
- Real Estate Registration Law No. 43 of 1971 (Official Gazette No. 1995 of 10/5/1971) — Articles 6, 56, 57, 229, 256, 257, 258, 259 and 260
- Endowments Administration Law No. 64 of 1966 (Official Gazette No. 1293 of 31/7/1966) — Articles 1 and 10
Frequently asked questions
In whose name is a controlled endowment registered?
In the name of the endowments directorate with the founder's conditions, under articles 56 and 256 of the Real Estate Registration Law.
Can an endowment over registered property be entered without the owner's acknowledgement at the directorate?
Yes. Article 256 registers it on a Sharia deed or final judgment without taking an acknowledgement.
Can endowed property be mortgaged?
Article 258 bars creating any real rights over it except where the law allows.
How is a public cemetery registered?
In the name of the endowments directorate as a controlled endowment, under article 57.
Related topics and articles
- 01Substitution 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.
- 02Disputes 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.
- 03Building 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.
- 04The 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.
- 05The 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.