Law No. 3 of 1976, which regulates land sales, fully and explicitly prohibits trading lands intended for construction within an approved general zoning plan. The law justifies this ban, stating that it will control real estate speculation, thereby preventing the prices of these lands from rising and compelling owners to construct on them. However, the ban constitutes a legal and constitutional violation of the rights granted to property owners – namely, the right to dispose of their own property.
In order to register the sale of a piece of land, civil courts – especially those in Damascus, Aleppo, and Homs – required a statement proving that the property was not covered by Law No. 3 of 1976, i.e. that it was not included in an approved general zoning plan. If it turned out that the property was included within a general zoning plan, then the court would issue a decision to dismiss the case and prohibit the registry of the sale.
This protocol continued until the issuance of Legislative Decree No. 26 of 2013, which “determines the cases for permitting or not permitting the owners of lands located within the boundaries of the zoning plans” and cancels the prohibitions set in Law No. 3 of 1976. In other words, Decree No. 26 permitted owners of lands located within zoning plans to dispose of those properties, with three exceptions:
First: Lands that belong to housing cooperatives may not be sold before they are constructed upon.
Second: For land that is sold by public institutions to a natural person or legal entity (a foundation or company), the buyer may not sell the property before constructing on it. Decree No. 26 exempts heirs who jointly own land that was purchased by their ancestors from public institutions, allowing them to sell such properties. However, those who buy such properties from these heirs may not sell them before constructing them.
Third: This exception concerns plots of land that were allocated by public institutions tasked with housing for natural persons or legal entities, or plots that were sold to these parties with the aim of building housing on them. The recipient or buyer of such properties – whether a natural person or legal entity – may not sell them before constructing them. The land after its subdivision takes the form of plots.
Decree No. 26 of 2013 prohibited cadastral affairs offices and notaries public from conducting real estate sales in the three cases above, and considered them null and void if they did occur. The decree also considered such sales, when they occurred, a type of fraud, with both the seller and the buyer punished with a fine and imprisonment between three months to two years.
It is clear, then, that Decree No. 26 of 2013 did not actually repeal Law No. 3 of 1976, in that it kept prohibitions on sales in the above three cases. This prohibition also constitutes a violation against the right of ownership, which is protected by the constitution. Infringing on this right is forbidden except in the public interest. This measure, however, is not included in Law No. 26 of 2013, as prohibition in the above three cases contains no clear public benefit. That being said, the decree does indirectly imply that prohibiting such sales has some social function.
On the other hand, owners of lands slated for construction may in some cases be unable to build anything due to financial hardship. In such cases, banning disposal of such land makes little sense. As such, the bans are inconsistent with the spirit and intention of the law, which is to develop the real estate investments process.