Amiri_lands – Syria Report

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Explained: The Right to Dispose of Amiri Lands

26-03-2024/in Analysis & Features, HLP /by Rand Shamaa

The right of ownership entitles the holder to use, benefit from, and dispose of their property, according to Article 768 of the Syrian Civil Code. This means that full ownership grants the owner authority over the property, its benefits, and its disposal. Therefore, the right to dispose is a real right concerning the property, derived from the ownership right, enabling the holder to dispose of it.

The right to dispose of real estate is only used in reference to Amiri lands, which are owned by the state, and can be subjected to disposal rights. The state, as the owner of Amiri lands, grants individuals the disposal right to benefit from them, allowing them to use, exploit, and lease them. Disposal can be physical, such as digging or planting trees, or legal, such as transferring the disposal right to others while keeping the land’s ownership or the property’s base with the state.

The Syrian Civil Code does not include a definition of the disposal right but addresses it while defining the ownership right. The provisions related to the ownership right in the Civil Code apply to the right to dispose of Amiri lands, according to Article 772 of Civil Code No. 84 of 1949, unless the law states otherwise. This includes the scope of ownership, means of protection, limitations, reasons for acquisition, registration, and transfer.

Thus, the right to dispose is a limited ownership right, confined to granting the holder the authority to use and exploit the real estate, not its ownership. The right to dispose is similar to the right of usufruct in that both are real rights derived from the ownership right, but they differ in that the right to dispose applies only to Amiri lands, while the right of usufruct applies to owned real estate. Moreover, the right to dispose is a perpetual right that transfers to the heirs after the death of their ancestor, the disposer, whereas the right of usufruct is a temporary right that ends either when the term expires or upon the death of the beneficiary in all cases.

The right to dispose also differs from the ownership right in several respects:

Firstly, the ownership right pertains to real estate properties in administratively zoned and defined areas, whereas the right to dispose applies only to Amiri lands, where the state retains the ownership and grants others the right to benefit from them. Additionally, the ownership right recorded in Land Registries is a permanent right that does not expire with time, in contrast to the right to dispose, which expires if the land is not used for five years, according to Article 775 of the Syrian Civil Code.The right to dispose of Amiri lands can be registered in the Land Registry after 10 years from the date of possession if the possessor has cultivated the land, according to the judicial precedent set by the Court of Cassation in decision No. 293 of 1955.

The State Litigation Authority, which represents state institutions in legal proceedings whether initiated by or against them across various courts and levels, can claim the recovery of Amiri lands and convert them into private state property. This has not occurred in practice, but it remains a theoretical possibility, especially in the context of forced investments carried out by the state on properties belonging to forcibly displaced persons and those who have moved to opposition areas.

Secondly, in the event of death, the ownership right is subject to inheritance laws according to the Personal Status Law of 1953, which is based on Islamic Sharia, whereas the right to dispose of Amiri lands is governed by the Law of Transfer of Immovable Property of 1928. The 1928 law grants equal shares to both male and female siblings when dividing the inheritance among them. If a piece of Amiri land later falls within zoning boundaries and becomes privately owned property, this does not affect the heirs’ rights, and female shares cannot be reduced under the pretext that the legal status of the property has changed to privately owned and is subject to Islamic inheritance rules. The acquisition of rights by the heirs occurred before the legal status of the property changed, based on Article 825 of the Civil Code, which considers a person who inherits a property as its owner before registration. If Amiri land becomes privately owned before the disposer’s death, then the property is inherited according to the Islamic inheritance provisions in the Personal Status Law.

Thirdly, a property owner can endow it, meaning transfer it as a waqf (endowment) to the Ministry of Waqfs and its directorates, whereas those with the right to dispose of Amiri lands cannot establish an endowment right on them. Any waqf created on Amiri land is considered invalid according to Article 774 of the Civil Code.

Explained: Usufruct Rights

27-02-2024/in Analysis & Features, HLP /by Rand Shamaa

The Civil Code No. 84 of 1949 outlines the provisions and legal nature of usufruct rights, defining them as a real right that pertains to the property itself without any intermediation from others. Usufruct rights grant the holder direct authority to use and exploit an immovable or movable property while the actual ownership, or “bare ownership,” remains with the owner.

In other words, ownership rights allow the owner to dispose of, use, and exploit their property, including the benefit of its use. However, an owner can relinquish the usufruct rights to another, granting that individual the power to use and exploit the property while retaining the right to dispose of it.

Furthermore, an owner of a property encumbered with usufruct rights can sell the property, but the usufruct rights remain with the beneficiary. The beneficiary can exercise their rights over the property, benefit from it, and relinquish their usufruct rights to another without the property owner’s consent. This means that a new property buyer does not have the authority to evict the beneficiary.

This illustrates the difference between renting and usufruct. While renting is a personal right and not a real right, it guarantees the tenant the benefit of the leased property but does not grant them the right to use and exploit it. Therefore, the landlord can evict the tenant.

Conversely, the usufruct beneficiary cannot make ownership transactions with the property, which remains solely with the owner. This is supported by judicial precedent in Court of Cassation decision No. 1436 of 1980, stating that the beneficiary has a real right over the property and can transact with it, except for its ownership or “bare ownership.”

Usufruct rights are established through a contract between the property owner and the beneficiary, where the owner grants the beneficiary the right to use the property, with or without financial compensation, while retaining the bare ownership. If the usufruct applies to real estate, this right must be registered in the Land Registry or marked with a claim to establish the usufruct on the land record.

In this case, the beneficiary is required to conduct an official inspection to identify the property subject to usufruct and its contents. The beneficiary must also provide a guarantor or a cash or physical guarantee to compensate the property owner for any damage at the end of the usufruct period. These two conditions (the inspection and the guarantee) are not mandatory. They can be waived by the contract establishing the usufruct right, according to Article 939/2 of the Civil Law. The beneficiary must also take care of the property and return it to the owner in the same condition as it was at the beginning of the usufruct, under penalty of being responsible for any subsequent damages.

Usufruct rights can also be established through prescription (Statute of limitations), provided that the property has not undergone delimitation and census, meaning it does not yet have a Land Record. Usufruct rights on such land are acquired through long prescription, that is, after 15 years of possession of the property.

Usufruct rights are not permanent; they expire either at the end of the specified term or upon the beneficiary’s death. Therefore, usufruct rights are not transferred to the heirs of the beneficiary. This contrasts with the rights concerning Amiri lands. In the case of Amiri lands, the state owns the bare ownership but grants others the right to dispose of them, allowing these individuals to use, exploit, and cultivate the land. The benefit of such disposition transfers to the heirs upon the death of the disposer, and if included within zoning plans, the property can become the absolute ownership of the beneficiary (or their heirs), allowing for the legal classification of the property to be changed from Amiri to private ownership.

Explained: The Impact of the Estate Inheritance Inventory Document on HLP Rights

24-10-2023/in Analysis & Features, HLP /by Rand Shamaa

The estate inheritance inventory document (EIID) is the fundamental basis for identifying the names of a deceased person’s heirs, clarifying their degree of kinship and determining their entitled shares of the inheritance. This document can only be issued after the person dies, their death is registered in the Civil Registry, and the heirs extract a death certificate and family registration statement. Afterwards, the relevant court can be consulted to obtain the EIID. The court then appoints an expert to determine the heirs and their shares in the estate.

The general rule in distributing shares among the heirs is to consider the entire estate as a single unit valued at 2,400 shares, distributed to the heirs each according to the size of their personal share. This rule applies regardless of the number of heirs and the size of the estate.

Through the EIID, each heir can subsequently handle their inheritance share, such as selling all or part of it. If one of the heirs sells or does other actions of the estate’s properties before organising the EIID and sells a larger share than what is allotted to them, this is considered selling someone else’s property. This action cannot be executed without the consent of the rest of the heirs.

The importance of the EIID stems from its role in clarifying the status of the estate’s owners in legal disputes. Article 85 of the Land Registry Law No. 188 of 1926 states that proving the rights of the legal heirs is done by presenting the inheritance certificate (EIID) if the estate is owned. Therefore, an heir may not file a lawsuit against another heir unless they present an EIID before the court.

However, if someone other than the heirs files a lawsuit against the estate (to collect a debt, for example), the lawsuit must be against the heirs identified in the EIID. The claimant can obtain a certified copy of the EIID and present it to the court handling the lawsuit if the heirs have previously set up the document. If they have not, the claimant can request the court to create a special EIID for the lawsuit during the same case.

If the estate is Amiri land, the conciliation judge must decide the case according to Article 85 of the Real Estate Registry Law.

It is necessary to clarify the difference between the EIID set up by the heirs and an EIID specific to a legal case. The EIID set up by the heirs is considered general and can be used in various cases, both by the heirs and by third parties with rights (creditors, for example). On the other hand, the EIID specific to a particular case is limited to that case and cannot be used in another lawsuit.

To extract certified copies of the EIID, the heirs must preserve the decision number and date of the original EIID.

On the other hand, the EIID serves as a legal solution to cease legal disputes upon the death of one of the parties in a lawsuit. The lawsuit cannot continue unless an EIID for the deceased is presented, representing them by the heirs in the ongoing legal dispute. After notifying the heirs, the court continues the proceedings in accordance with Article 166 and the following articles of the Civil Procedure Law.

The EIID must be created in accordance with the nature of the estate. Generally, movable assets and real estate located within a given zoning plan require a Sharia EIID for their division. However, if among the estate’s properties there are Amiri lands – i.e., those located outside of a zoning plan – a legal EIID is necessary for their division.

The difference between the two types is that the Sharia EIID is produced by a Sharia court according to the provisions of inheritance and bequests in Islamic law, as stipulated in the Personal Status Law. On the other hand, the legal EIID is produced by the civil reconciliation court within the jurisdiction in which the heirs reside, and the inheritance is subject to the provisions of the Law on the Transfer of Immovable Property of 1928, which regulates the provisions for transferring Amiri lands to heirs.

It is crucial to emphasise that the production of the EIID primarily depends on the information provided by the heirs. Therefore, any incorrect information is considered a distortion of the truth and entails criminal liability as it constitutes a forgery crime, according to judicial precedent No. 115, Decision 247 of 2002. Such cases could include the heirs intentionally omitting the name of one of the beneficiaries to deprive them of their inheritance.

Ministry of Endowments Removes Some Endowment Rights from Properties

28-02-2023/in HLP, News /by Rand Shamaa

On December 21, 2022, the Ministry of Endowments issued Decision No. 1104, which removed some endowment rights registered in the Land Record for certain real estate properties. In return, the owners are to pay five percent of the current value of these properties to the ministry’s directorates.

The real estate targeted by Decision No. 1104 is not endowment properties. Instead, they simply have endowments’ rights listed as their legal classification or as a note on their Land Records, which does not impose any restrictions on the rights of the property owners, who are entitled to sell and transfer ownership of the properties. Meanwhile, endowment classifications remains in place within their records.

Actual endowment properties have a special legal status, belonging neither to the state nor to individuals. Owners of such properties may not do as they wish with them, but instead they must go to the benefit of the people. Ownership may not be transferred to others because they are considered to be “governed by God”. Endowment properties include mosques, hospices, tawhid religious centres, schools, libraries, cemeteries and shrines.

The endowment rights removed by Decision No. 1104 are tithes, sultani (dominion) rights, alomara rights and annual remunerations. These were among the dividends paid to the Ottoman state for the usufruct of some properties, some of which have no real endowment origins. Tithes were one-tenth the output endowments lands, paid by those properties’ beneficiaries. Meanwhile, sultani and alomara endowments were historically applied to Amiri lands distributed by the Ottoman wali governors, given that some benefits were classified as endowments.

Likewise, these were not endowment properties, and beneficiaries entitled to dispose of them had to pay annual fees to charitable organisations or to the endowment administration to benefit from them. Finally, the annual remunerations were “endowments” of a yearly sum to be paid by beneficiaries of a given property as an annual donation to a person or mosque, according to the wishes of the original property owners.

During the short-lived United Arab Republic between Syria and Egypt in 1958-1961, the endowment system was regulated, and some endowment rights were abolished as those properties were not originally endowment properties, but Amiri lands belonging to the state whose benefits were halted. For example, Endowments Properties Law No. 189 of 1960 stated that endowment authorities no longer had the right to collect sultani and alomara endowments because they were not endowment properties. Two years earlier, Law No. 174 on Tithes and Lump-Sum Returns cancelled the right of endowment institutions to collect these annual payments. And Jurisprudence No. 60 of 1961 affirmed that notes on such rights in the Land Registry were no longer valid, including those listing tithes, sultani payments, alomara payments and annual remunerations.

In essence, the Ministry of Endowments’ recent Decision No. 1104 contradicts the contents of Laws No. 189 and 174 and judicial jurisprudence. This is because the ministry is not entitled to collect payments in return for the removal of non-original endowment rights, which previous laws had already canceled.

Decision No. 1104 removes those rights only after collecting a sum equivalent to five percent of the current value of the properties in question, as determined by the relevant financial entities. According to the decision, the property owners in zoned areas could pay that five percent sum, or register in the name of the relevant endowments directorate a share equivalent to five percent of the current value of those properties.

The concerned endowment directorates handle the cancellation of these endowment rights after confirming the completion of these payments, which then serve as revenue to benefit those directorates.

In practice, nothing changes for the owners of these properties after the endowment rights are removed, as they were not already paying endowments for them. The only thing that changes is cancelling those rights from the Land Records.