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Administrative and Legal Obstacles Prevent Confirmation of Property Ownership in AANES Areas

05-12-2023/in HLP, News /by Rand Shamaa

Admist rising real estate prices, increasing pressure of housing needs for displaced people in the Autonomous Administration in North and East Syria (AANES) areas, and the continuous migration of locals abroad, residents seek to document their property ownership by all available means. However, they face obstacles, mainly due to the judicial overlap and the dual authority in charge of real estate documentation between the Damascus government and AANES authorities.

Many people in AANES areas are trying to legally confirm their ownership by filing lawsuits to ensure sales contracts in the civil courts, for the first instance, under the Ministry of Justice in the Damascus government. In this case, the buyer only receives a judicial decision to confirm ownership if the property is located within a zoning plan. The Damascus real estate authorities refuse to carry out lawsuits to confirm sales contracts for properties outside of zoning plans and require a letter from the concerned municipality indicating the zoning nature of the property and the Building Code followed. The issue is that the zoning nature of most real estate areas outside major city centres is still undivided commonly owned land. As in all informal settlements, landowners sell parts of it or properties built on it as undivided shares.

For example, Ahmad has a property in Hassakeh city and confirmed the sales contract by a judicial decision from the civil court of first instance. However, when Ahmad sold his property, the same court refused to confirm the previous sales contract it had issued and asked the new buyer to obtain a letter from the municipality showing the zoning nature of the property. When he consulted the municipality, they conducted a topographic survey of the property and compared it with their zoning plans. They found that the house was built on land designated for a public park.

Expropriation for public benefit is exclusively done by a decision notified to the stakeholders, with appropriate compensation. However, in Ahmad’s case, the land was noted in the zoning plan to be a public park, but in reality, it had not yet been expropriated for that purpose. As long as the expropriation decision is not issued, the property is not public property. Therefore, ownership can be confirmed until the expropriation decision and compensation are properly issued. However, this did not happen with Ahmad, as his lawsuit was dismissed, and he could not confirm the sales contract and transfer the property to the new buyer.

Similarly, Khaled, who purchased a house and filed a lawsuit to confirm the sales contract, was surprised to find that the land on which the house was built was designated in the zoning plans to construct a school. Khaled could not confirm his ownership in this case, so he cancelled the sales contract and recovered what he had paid to the seller.

In reality, as long as there is no restraint on the disposal of the property, the owner has complete freedom to manage it. Even if the property is marked for public benefit in the zoning plans, the court should decide to confirm the sales contracts and not deprive the buyer of confirming their ownership, even if the implementation of those plans is delayed. Over the past years, the war has disrupted the urban expansion of cities and towns and, therefore, the process of updating the zoning plans and aligning them with realities on the ground.

Khalil said that when he filed a lawsuit to confirm the purchase contract of his house, which he has owned for decades on the outskirts of Qamishli city, the civil court of first instance demanded a legal permit. A legal permit is an administrative process conducted by the Directorates of Agriculture and Real Estate Affairs if the property is located in border areas outside of zoning plans. In this case, prior security approval endorsed by the Ministries of Defense and Interior is required.

As Khalil discovered, the Qamishli municipality had been planning to zone that area for years and included it in the city’s zoning plan. However, administrative procedures delayed this process, and then the war led to the neglect of the issue, which remains unresolved.

On the other hand, the AANES does not recognise the allocation documents issued by municipalities affiliated with Damascus after 2011. Allocation documents are akin to property ownership documents issued by municipalities to confirm the ownership of properties, most of which are lands sold to individuals. The AANES bases this on the regulations and systems law it issued in 2014 to regulate urban development. AANES authorities require those wishing to obtain an allocation document to purchase properties from its municipalities exclusively.

This applies to properties sold by municipalities affiliated with Damascus after 2011. The AANES does not recognise the allocation documents issued by the regime’s municipalities after 2011 and asks their purchasers to obtain new allocation documents from its municipalities. The buyer is forced to repurchase the property from the AANES’ municipalities. A buyer may choose not to do this, but if they want to build on the land, they must, again, obtain a construction permit from the AANES’ municipalities. Here, it becomes necessary to obtain an AANES allocation document.

Another Qamilshi resident, Layla, said that she obtained an allocation document from the Damascus-affiliated Qamishli municipality in 2013. However, in 2023, the AANES’s municipality asked her to repurchase the same land from them to issue a construction permit for it.

Rising Number of Kurds Formalise Property Ownership in Northeast Syria

08-08-2023/in HLP, News /by Rand Shamaa

Until just a few years before 2011, the sales of houses, commercial shops, and agricultural lands in northeastern Syria were done via contracts that were not officially registered in the courts or Land Registry.

There were various reasons for this. One was the reliance on personal trust between people due to tribal kinship relationships. Another was a limited understanding of legal matters. There was also a desire to avoid the financial costs of property transfer. Moreover, thousands of Kurds were stripped of their Syrian nationality under the exceptional 1962 census and were deprived of most of their housing, land and property rights, leaving them unable to carry out formal real estate transactions.

As a result, many properties and lands in northeastern Syria remained communally owned and undivided. Their ownership documents were unofficial sale contracts known as “barania contracts” – in Arabic, barania means “outside”, here referring to contracts being “outside” the legal system, i.e., informal. However, the accumulation of these issues over time led to many serious problems affecting housing, land and property rights.

Today, a number of factors — urban growth and zoning expansion, population growth with internally displaced families from other governorates, and multiple, overlapping authorities in control of northeastern Syria– leave the heirs in the governorate fearing they could lose their property rights. Decree No. 49 of 2011, which finally granted Syrian nationality to Kurds previously registered as “foreigners”, has contributed to a surge in demands from this group to formalise real estate transactions that occurred during the period in which they were deprived of Syrian nationality as ownership by foreigners is very restricted.

As a result, many people are now seeking to solidify their property ownership in the official land registries. To do this, an individual (or one of their heirs) wishing to confirm their property ownership, referred to as the “first party”, must present the unofficial “barania” sales contract to the original seller (or one of their heirs) — referred to as the “second party” — under whose name the property is still registered. The first party then asks the second party to acknowledge the validity of the barani contract in court.

In many cases, the second party unofficially demands a sum colloquially termed the “taradia” (or “appeasement”) in exchange for acknowledging the sale in court. Currently, this amount depends on the property’s size and location. One heir occupying a property in Qamishli told The Syria Report that he paid around USD 3,000 to the lawyers of the original property seller’s heirs (under whose name the property is still registered) to have them acknowledge the barania sales contract’s validity in court, even though the sale occurred 40 years ago.

If the first party’s lawyer initiates a case to validate the property sale for their client in the relevant court, and official notifications are made through newspapers, and the second party or their legal representative becomes aware of this, the second party often intervenes in the lawsuit. At this point, if the first party does not pay the taradia, then the second party usually obstructs the lawsuit’s progress. The second party may then resort to prolonging the lawsuit, either by denying the barania contract’s validity or challenging its authenticity, alleging forgery.

If the first party has lost the barania sales contract, the second party might demand a larger payment, asking for witnesses from the neighbourhood who can confirm that the first party indeed occupied the property before 2011. Thus, particularly if the property in question is commercial or residential, the first party might be compelled to yield to the second party’s demands.

For example, when Zuhair, one Hassakeh resident, conducted a topographical survey on a plot intended for construction that he purchased 30 years ago, he discovered that 30 square metres of it were public property. Nonetheless, Zuhair had to pay a taradia for the entire land area before the original seller agreed to confirm the contract’s validity in court.

In contrast, AbdulRahman, another local resident, didn’t need to pay any taradia when he filed a case to validate the purchase contract of his house, which he has lived in for 40 years. This was because the seller had emigrated from Syria years ago and didn’t delegate anyone to handle his affairs. The seller did not attend the court hearing, despite being notified through official newspapers. After listening to two witnesses and conducting a local investigation, the judge decided on the matter, issuing a decision to validate the contract.

Explained: How Imbalanced Contracts Impact HLP Rights

14-06-2023/in Analysis & Features, HLP /by Rand Shamaa

Al-Ghabn, which translates to “injustice” or “disadvantage”, is a lack of balance in the obligations imposed on contracting parties, and manifests as a clear discrepancy between what one party takes and what it gives to the other.

The Syrian Civil Code focuses on cases of al-ghabn in certain exchange contracts. These are contracts that impose a pre-determined material obligation on each party towards the other, such as a sale contract that obliges the seller to deliver the sold item and the buyer to pay the specified price.

However, the Civil Code does not provide for occurrences of al-ghabn in potential exchange contracts that impose obligations on both parties of the contract, but does not specify what each party takes or gives when the contract is made. One example is insurance contracts. Similarly, al-ghabn cannot occur in donation contracts, such as those for gives, which impose an obligation only on the giver. Therefore, there is no scope to discuss a balance of obligations and the occurrence of injustice in the aforementioned contracts.

The Civil Code discusses two types of al-ghabn:

Firstly, material or abstract imbalance: This is material damage inflicted on one of the two parties to the contract via a lack of reciprocity between the two sides. The law does not intervene to protect against abstract imbalance, however, except in cases concerning sound capacity or consent.

The most notable cases of abstract imbalance in the Civil Code include those of real estate sales of properties belonging to minors below 18 years of age or who lack capacity, either by themselves or through their guardian, if they were to sell their real estate at a value of less than one-fifth its actual value. Here the law is based on the idea of caution in guaranteeing the rights of the party who lacks capacity. Still, this does not prevent such a person’s guardian from selling the property in question after obtaining legal permission to do so.

Material imbalance, on the other hand, can include an imbalance in the distribution of shared assets. Under Article 799 of the Civil Code, a partner to a commonly owned piece of real estate may file a lawsuit requesting termination of the common property if they prove that they faced al-ghabn, or an imbalance, of more than one-fifth the value of the property at the time of division.

The Civil Code entitles the defendant in such a case to halt the litigation and stop the new division of the property if they compensate the complainant either in cash or in kind for the losses incurred. Such al-ghabn lawsuits, however, are limited to cases of consensual division only, and are not permitted in cases of judicial division in lawsuits to terminate common ownership, as a ruling for termination constitutes and admission of fair rights between the two sides.

Secondly, Al-ghabn al-istighlali, or exploitative fraud: This is when one party to a contract exploits the recklessness or impulsive behaviour of the other, thereby inflicting injustice on them through the contract. This is a result of an imbalance in obligations between the two parties, as the wronged party would not have entered into the contract if not for the exploitation wrought by the other.

The principles of exploitative fraud are governed by Article 130 of the Civil Code. This article stipulates that if the obligations of one of the contractual parties do not match up with what the other party received as a benefit to the contract, or if they do not match with the obligations of the other party, then a judge may invalidate that contract or reduce the obligations at the exploited party’s request. In such cases, the wronged party must prove that they would not have entered into the contract if not for the other party having exploited their recklessness or impulsive behaviour.

Clear recklessness is an imbalance in a person’s actions — for example, a young person squandering a large inheritance, or someone continuing in unproductive ventures. Meanwhile, impulsive behaviour is a psychological tendency for someone’s emotions to take precedence over their will — this can include cases such as a wealthy elderly man marrying a young woman and signing contracts relinquishing his possessions to her in a way that exploits his impulses.

Contrary to al-ghabn along, where the Civil Code sets a specific one-fifth limit (as mentioned above), there is no limit by which the occurrence of exploitative injustice can be assessed — rather, it is sufficient that there is imbalance between the obligations of the two parties. It is up to the discretionary authority of the judge to determine the occurrence of al-ghabn, and they should rely on expertise according to the nature of each case. The court has asserted in its jurisprudence that al-ghabn must be exorbitant to be lifted from the wronged party.

The party to a contract who fell victim to exploitative fraud can file a lawsuit within a year from the date of the contract. The competent civil court will either cancel the contract or reduce his obligations. The other party can halt the lawsuit for annulment if he offers to the court to remove the injustice. It is up to the judge to decide here, according to Article 130 of the Civil Code.

The Syrian Civil Code, issued in 1949, should be amended and the instances listed of exploitative fraud should be expanded, adding to clear recklessness and impulsive behaviour, a new condition represented in the exploitation of need or circumstances, as is currently the case.

Networks of influential individuals exploit the security circumstances of regime opponents, buying their properties at the lowest prices. The owners of these properties are forced to sell them for fear of them being seized and confiscated according to the terrorism law, inflicting gross injustice from the other party who exploited their needs and circumstances. Therefore, justice requires that these individuals are given the right to file a lawsuit to remove the flagrant injustice inflicted on them as a result of selling their properties, and to demand the annulment of the sale or completion of the payment within a specified period beginning after the threat of security pursuit has subsided.

Explained: Zoning Plan in Douma

22-11-2022/in Analysis & Features, HLP /by Rand Shamaa

Douma is a city in East Ghouta and serves as the administrative centre of the Rural Damascus governorate and the Douma district, which contains seven districts. The 2010 census estimated that 300,000 people live in the 3,000-hectare city.

The Douma Department of Real Estate has 68 real estate zones covering the entire Douma district. The city is composed of nine real estate zones: Sahat wa Arab, Annatar, Qasareen Shams, Al-Dweir, Al-Rumman, Al-Qusayr, Al-Mazraaeh, Betwaneh, and Al-Ab. Sahat wa Arab and Qasareen Shams form the main historic centre of Douma, which hosts the Great Mosque, Al-Ghanem Square, Al-Hal Souk, and Khorshid Street.

Informal housing

The importance of Douma increased in the 1980s, making the city a popular destination for newcomers from other parts of the country. The new arrivals increased the demand for housing in the area. Thus, the city began to expand informally at the expense of local farmland, especially in the north and south. By 2010, these informally built areas comprised 70 percent of the total area of Douma.

One group of informal housing projects, dubbed Al-Hajjarieh, sprouted at the city’s northern end, extending over the Antar, Al-Rumman, and Qasareen Shams real estate zones. Another one, Haret Al-Deirieh, was also established in the Betwaneh real estate zone. A third informal housing project took shape on an area legally classified as agricultural land in the Annatar and Al-Rumman, extending to the Damascus-Homs highway. Some informal housing projects were also constructed in Al-Qusayr real estate zone, eventually reaching the Al-Hajjarieh informal housing project from the west.

On top of that, Al-Mazraaeh and Al-Ab zones south of Douma, which were previously classified as agricultural land, became informal housing areas. The informal housing project in Al-Mazraaeh expanded until it reached the nearby town of Al-Shayfounieh, while the informal housing in Al-Ab reached the city of Misraba.

Similar housing projects made their way to the Al-Dweir real estate zone, which contains the Adra Prison and the Ibn Sinna Hospital for Psychiatric Illnesses.

It is worth noting that Douma’s informal housing projects sprouted, for the most part, on private agricultural lands that were not previously zoned rather than on public property. The owners of these unlicensed homes also pay a roof tax to the Rural Damascus governorate’s Department of Finance. In other words, these properties are noted in the governorate’s financial records as houses although they are unlicensed. That said, these homes are not listed in the Land Registry and are still considered legally considered to be commonly owned shares of properties.

Zoning

Douma has an old zoning plan issued in 1966. In 2003, however, the municipality expanded its zoning plan to include new areas such as the Haret Al-Joureh neighbourhood and new housing cooperative homes in the Annatar real estate zone. This expansion also included previously unzoned areas of Annatar, Al-Ab, and Al-Mazraaeh. The zoning plan’s total surface area after the 2003 expansion reached 560 hectares and was approved in 2005.

Compulsory land readjustment

The 2003 expansion also zoned a 250-hectare area of Douma according to the principle of compulsory land readjustment. The readjustment occurs when a site is being zoned by distributing property shares to rights holders, often not in the original locations of those properties, and after deducting a certain percentage of those properties without compensation. The decision to undertake this zoning process was made per Law No. 9 of 1974, which concerns the division, zoning, and construction of cities. The law prohibits transactions that subdivide or consolidate real estate and grant construction permits before completing the compulsory land readjustment process.

In Douma’s case, the compulsory land readjustment included parts of the Annatar, Al-Rumman, Betwaneh, Al-Mazraaeh, and Al-Ab real estate zones. For example, the newly zoned portion of Betwaneh, which was previously classified as agricultural land, was renamed the “Tantheem Khalaf Al-Baladieh” and has become known as among the nicest and most expensive parts of Douma due to its modern urban planning and green spaces.

On the other hand, compulsory land readjustment was not implemented in other parts of Douma, where dense informal housing remain in place. In 2005, Douma’s city council decided to make the compulsory land readjustment areas subject to rezoning under Law No. 46 of 2004, an amendment of Law No. 9 of 1974. This amendment allowed compulsory land readjustment areas to be considered areas of collective unlicensed construction. The measure made it easier to grant construction permits, carry out real estate subdivisions, and consolidate transactions under certain conditions within such areas. The Rural Damascus governorate approved the city council’s decision in 2010, but it has yet to be implemented.

Post-2011

During the 2011 uprising, protests reached Douma, and the government tried to control the situation by requesting that a committee of residents be formed so that they could communicate their demands. This committee then submitted its demands, which, most notably, included expanding Douma’s zoning plan.

In June 2011, the Rural Damascus governor said that the residents’ demands were being implemented and affirmed the need to enact the new zoning plan as quickly as possible. He gave Douma’s Directorate of Cadastral Affairs a one-month deadline to complete lists of common property owners and form a committee to follow up on implementation and overcome any roadblocks.

Then, in June 2011, the government issued five decrees for the Douma district, Decrees No. 195-199, which allowed the city council to implement compulsory land redistribution under Law No. 9 of 1974 for the following real estate zones: Al-Ab, Annatar, Al-Sindyaneh, Betwaneh, Al-Gharbieh, and Al-Rumman. The five decrees deemed the implementation of such work in these areas to be in the public interest.

Furthermore, implementing the decrees was supposed to speed up the compulsory land redistribution process and solve the problem of informal housing and common ownership. However, deteriorating security and political conditions prevented the decrees from being carried out. Meanwhile, during the regime’s siege of East Ghouta between 2013 and 2018, regime forces bombed Douma heavily with artillery fire and rockets, leading to widespread damage in residential neighbourhoods, whether zoned or informal.

The information in this article draws on a wide-ranging interview The Syria Report conducted with Adnan Taha, a former official at the Office of Documentation in Douma.

The Rise and Fall of the Informal Settlement

15-11-2022/in HLP, News /by Rand Shamaa

In the 1990s, the owner of a large plot of arid land outside Damascus died, bequeathing his land to his four sons. The sons shared common ownership of the property, with each holding 674 of the land’s total 2,400 shares. In legal terms, the land was excluded from the town’s zoning plan and classified as agricultural, meaning construction on the plot was unauthorised.

According to Article 780 of the Syrian Civil Code, common ownership is when two or more individuals share ownership of one property such that each share is not subdivided, making them co-owners.

In this case, the four sons determined the locations of their shares without official documentation. Because the land was classified as agricultural, each son built an unlicensed house and sold what remained for unlicensed construction. Because the land was owned as a commons, the sales were made for the original property’s shares through contracts documented by the notary.

The new buyers then built unlicensed houses on their plots of land without construction permits and without registering their properties in the Land Registry. This is how informal settlements began to arise in the area in the late 1990s. However, despite all the changes that have occurred to the property since its original owner’s death, the legal classification of the land has remained as it was beforehand: arid agricultural land. In the late 1990s, at least 25 multi-storey buildings with dozens of apartments were built on the land. Each owner of these apartments technically owns a share of the original, commonly owned property.

This informal settlement did not have basic services, such as public water, electricity, and sewage networks, among other things. And yet, high costs and increased demand for housing in formally zoned areas pushed people to build and live in informal housing instead. After several years, the local municipality eventually provided some services to this particular district.

Here is where the story of Omar and his five brothers, who moved to Damascus for college and work, begins. The six brothers saved enough money to purchase a house in the informal settlement in 2002. The home was one storey and was constructed on a 120-square-metre plot of land. But because the property was not formally listed in the Land Registry, the brothers’ ownership of the home took the form of 21 common shares of the original, larger plot of land in the informal settlement. That meant their sole proof of ownership was a contract sale of shares under an irrevocable power of attorney regulated by a notary. Because their shares were small, the brothers agreed to register their shares pro forma under Omar’s name because their allocations were small.

After some time passed, the brothers reinforced the house and constructed additional storeys due to the increasing urgency of their housing needs. By 2011, they had a three-storey house with five apartments. The legal status of their property, however, did not change. It was still simply 21 commonly owned shares of the original land.

At one point, the brothers began considering the possibility of terminating the common ownership of their property to preserve each of their rights. Here they came across a complex legal situation, which made things difficult for them for two main reasons. First, the municipality must correct the classification of the original land from agricultural to residential before terminating the common property, which is beyond the brothers’ abilities. Second, there was the practical issue of a large number of common owners of the original land.

Faced with these roadblocks, the brothers drew up a quota purchase contract in which they specified each brother’s share and its classification. For example, Omar owned the right-hand apartment on the home’s second storey. They registered it with the Damascus governorate’s Directorate of Finance and paid the required fee to legitimise the contract.

By 2012, once the revolution transformed into an armed conflict, Omar and his brothers, like many other informal settlement residents, fled to Damascus and left their homes behind. Regime forces seized control of the area and allowed residents to return only once to check on their properties, preventing them from returning to live there. Omar and his brothers inspected their apartments and found that the building had not been significantly damaged.

A security service branch arrested Omar in 2015, and the family’s multiple attempts to secure his release failed. This complicated the situation because the notary initially registered the 21 commonly owned shares under Omar’s name.

In 2017, the family learned that Omar had been killed under torture just a month after his arrest. They did not receive his body, and instead received a piece of paper requesting them to visit the Tishreen Military Hospital to pick up his death certificate.

In 2018, regime forces permitted residents of the district to visit their properties for a second time after regime forces retook East Ghouta from the opposition. The brothers discovered their neighbourhood was completely looted, despite the regime controlling it throughout the war. The house was robbed of its furniture, doors, windows, and baths, and anything that did remain had been destroyed.

The family’s building and other buildings in the area were no longer habitable. Even if their building was intact, the family members were scattered worldwide, some as refugees abroad and others internally displaced. Those who remained in Syria tried to return to the building but lacked the finances to restore it.

In addition, when Omar died under torture, he left behind a wife and two daughters. Because he has no male heirs, his wife, daughters, mother and brothers became his heirs, per Islamic inheritance rules. This means that the number of shareholders in the commonly owned property has now increased.

Omar’s small neighbourhood is an example of dozens of other informal areas across Syria that have seen similar fates. Approximately 40 percent of people in Syria live in informal districts, where common ownership is still the norm. Many of these areas saw significant destruction due to the war. Meanwhile, their residents were forcibly displaced and, thus, at risk of losing their housing, land, and property rights.