common_property – Syria Report

On March 10, Minister of Justice Ahmed Al-Sayed issued two circulars that restrict the ability of property owners in concerned areas to manage their properties. The first, No. 3, concerns lawsuits related to the partition, subdivision, termination of common property and correction of property descriptions. The second, No. 4, deals with the irrevocable power of attorney in areas undergoing beautification and the termination of common property.

Circular No. 3

Circular No. 3 is directed at judges in judicial bodies dealing with cases related to the termination of common property ownership, subdivision, and the correction of property descriptions. It mandates adherence to the content of previous circulars issued by the ministry concerning these cases. Additionally, Circular No. 3 emphasises that the Judicial Inspection Directorate (JID) and public prosecutors monitor the proper application of the circular and report any violations.

JID is an independent judicial entity headed by a judge, affiliated with the Higher Judicial Council and the Justice Minister. Its role includes regular inspections of the work of judges, courts, judicial departments, public prosecution, notary public offices, bar associations, and their branches, among other legal and judicial entities. A public prosecutor is a judge who works under the supervision of the Attorney General in the public prosecution office, is assigned tasks by the Attorney General, and receives complaints about the judicial system and public prosecution.

Circular No. 3 requests judges, the JID, and public prosecutors to adhere to the contents of a previous circular, No. 40 of 2016. This circular asserts that the relevant administrative units must be represented in cases concerning the subdivision and correction of property descriptions. If the co-owners of a common property do not agree on its voluntary partition, they must file a lawsuit in court for its division among them through a judgement that can be executed in the Land Registry, except in cases of obstacles such as construction violations. To ensure no such violation exists, the administrative units must be represented in these cases as the executive authority in the concerned real estate area, knowledgeable about zoning plans and building codes.

Furthermore, Circular No. 3 instructs judges, the JID, and public prosecutors to comply with the procedures and provisions of Article 64 of the Local Administration Law No. 107 of 2011 concerning partition, subdivision, and zoning cases, as stipulated in the previous Circular No. 27 of 2021. Zoning cases are legal actions filed by a property owner if they suffer a loss due to the zoning of the area, such as receiving inadequate compensation.

Article 64 of Law No. 107 of 2012 states that it is not permissible to divide, subdivide, or zone lands within the boundaries of an administrative unit, or to subdivide any already built construction, without a certified plan from the administrative unit. This plan must delineate the property boundaries and its surroundings, including the locations of main and side streets, and public utilities.

Circular No. 4

Meanwhile, Circular No. 4, addressed to notaries, the JID, and public prosecutors, responds to a previous letter from the Central Authority for the Supervision and Inspection (CASI) regarding some notaries’ violations of the provisions of Article No. 4 of the Beautification and Termination of Common Property Law No. 166 of 1967 and its amendments. These violations involve documenting irrevocable power of attorneys in property areas subject to beautification and termination of common property operations.

The CASI is an independent regulatory body affiliated with the Prime Minister, aiming to achieve effective supervision over the state’s administrations and institutions. This is to improve performance, preserve public funds, enhance productivity and efficiency, and facilitate the provision of services to citizens.

Law No. 166 of 1967 on the beautification and termination of common property is still in force. Its first article clarifies that the purpose of beautification and termination of common property operations is to partition commonly owned agricultural lands among their owners, or to beautify excessively fragmented agricultural lands by providing the owner with a single plot instead of several scattered ones. This aims to facilitate the investment and reclamation of lands. Article 3 of the law stipulates the formation of a committee in each real estate area to conduct beautification and termination of common property tasks. This committee includes the area’s real estate judge, the director of the Land Record in the governorate, the head of technical services directorate, a representative from the General Union of Farmers, and an expert from the local community appointed by the governor as a member.

Article 4, mentioned in the Justice Minister’s circular, specifies that upon the formation of the Beautification and Termination of Common Property Committee, all courts must refer all cases related to real property rights within the concerned property area to this committee. Furthermore, implementation departments must refrain from enforcing any cases related to the real property rights of that area. Additionally, the Land Record must abstain from accepting and registering any property transactions for the mentioned area until the completion of the operations is announced and the properties resulting from the beautification and termination of common property are registered in the names of their owners in the Land Record.

Law No. 166 of 1967 sets the duration of the Beautification and termination of common property Committees’ work at six months for a property area that does not exceed 100 properties after beautification, and eight months for an area with 200 properties. However, if the committee’s work exceeds these periods, the law states that the committee should not receive any additional compensation. In practice, there are entire areas where the committees have not completed their work despite decades passing since their formation. This includes areas of Damascus, such as in East Tijara, Adawi, and the planning area of South Midan.

Circular No. 4 also requests notaries to refrain from documenting any irrevocable power of attorney that includes the authorisation to sell property in an area where beautification and termination of common property operations have been announced, due to what the circular describes as preventing the obstruction of the committees’ work.

The incomplete work of the committees has led property owners, who are in need to sell their properties, to draft sales contracts and have them notarised as irrevocable power of attorney, wherein the seller delegates the buyer to transfer the property ownership to their name upon the completion of the beautification and termination of common property operations. Thus, the new circular stops this method of selling in areas under beautification and termination of common property until the committees have completed their work, arguing that these notarised irrevocable power of attorney obstruct the committees’ work due to changes in ownership.

Syria’s urban planning legal system imposes complicated conditions for granting construction permits on land commonly owned by multiple owners.

The laws distinguish between three cases when considering whether to grant such permits: lands commonly owned within provincial city centres, those located in the zoning plans of local administrative units and those outside such zoning plans but located within local administrative boundaries.

These procedures often are complex and take a long time. In addition, applicants face several unfair conditions, such as giving up their right to request services on the land and requiring the consent of all the owners, which can lead to blackmail. Other issues include the expropriation of shares from commonly owned lands and the complex procedures for terminating common ownership.

Consequently, many property owners avoid applying for construction permits and sometimes build without permits, leaving their properties vulnerable to future legal problems.

Properties within provincial city centres

Building permits on commonly owned properties in these areas are subject to the provisions of Building Plot Construction Law No. 82 of 2010, its Executive Instructions No. 105 of 2010 and amendments issued in Law No. 6 of 2020. Here, those who own at least half the shares on the commonly owned property must apply to their local city council for the construction permit, alongside a request to terminate the common ownership.

Next, the local council head forms a committee tasked with terminating common ownership of the property. This committee is led by a judge appointed by the Minister of Justice. It includes a representative from the administrative authority and a first-degree representative from the Directorate of Cadastral Affairs appointed by the Minister of Local Administration. The committee informs the real estate department to which the property belongs to place a sale notice for the property in a public auction. This committee then requests the owners to agree on their application for the construction permit within five days. It prepares a report documenting the agreed-upon terms among the partners. If they agree, the committee requests them to complete the permit documents. If they disagree, the committee decides to sell the property in a public auction according to the applicable legal procedures. The committee’s decision regarding the sale is published in local and Damascus newspapers two weeks before the auction.

All decisions by the committee are subject to appeal before the Court of Appeal in the relevant governorate, according to the deadlines for appealing urgent matters, which are set at five days. The Court of Appeal issues its decision in the deliberation chamber without summoning the parties, which is final. The winning bidder in the auction must pay the price of the property and other specified fees within ten days, under penalty of the property being auctioned again. Additionally, within six months, the winning bidder must submit a construction permit request for the property, accompanied by the required legal documents and technical plans.

Properties within local administrative unit zoning plans

Construction permits in these areas are subject to the executive instructions issued by the Ministry of Local Administration Resolution No. 3921 of 2011 regarding the repealed Law No. 59 of 2008 on unlicensed buildings. However, the current Law No. 40 of 2012 on unlicensed buildings and its executive instructions do not address this particular licensing situation. Therefore, the executive instructions of Law No. 59 remain applicable in this case.

According to the executive instructions of Law No. 59, several conditions must be fulfilled. The applicant for the permit must provide the administrative unit with a document proving ownership of the portion of the communally owned property that requires licensing. This proof can be a real estate registration statement, a notarized agency agreement or a court decision. Additionally, they must submit a detailed site plan from an engineering office, authenticated by the local council or technical services office, showing the location of the land to be licensed, its surrounding properties, building boundaries, roads and other facilities. A certificate indicating the area to be licensed, issued by the mukhtars Authority and notarised, must also be provided. Finally, the applicant must also submit a document signed by the adjacent landowners and notarized, attesting to the applicant’s right to the land requiring the permit. The permit applicant must promise not to claim any compensation in case the administrative authority decides to cancel or suspend the permit in the event of a legal dispute.

The land must meet certain conditions, such as partially facing a public road and having a specified length. In addition, a designated portion of the land should be allocated for public facilities. In this case, the executive instructions do not require the submission of a request to terminate communal ownership of the property along with the permit application.

Properties outside zoning plans but located within local administrative boundaries

Construction permits in these areas are granted according to the executive instructions issued by the Ministry of Local Administration on February 28, 2012. These instructions are similar to the licensing process for commonly owned lands within zoning plans, albeit with the addition of some conditions.

For example, a permit applicant for land outside a zoning plan must submit a notarized written promise to the notary public, stating that they will not demand the administrative unit to provide public services such as roads, water, electricity and sewage. This means that the administrative entity disclaims its responsibilities for implementing the rights accrued to the permit holder. In addition, the land area must meet a specific limit as specified in that governorate’s building codes. Finally, access to the land must be ensured without any objection from the owners of the remaining shares separating it from the public road.

After these conditions are met and before granting the permit, the local administrative unit must publish the permit request in one of the governorate’s local newspapers and on its bulletin board for 30 days. This is so that people can send in objections. If there are no objections, then the permit is granted.

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