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The Tortuous Path to Restore Damaged or Lost Real Estate Documents

28-08-2024/in HLP, News /by Rand Shamaa

During the opposition’s control of parts of the Rural Damascus governorate between 2012 and 2018, the Directorate of Cadastral Affairs in Rural Damascus suspended the work on the Land Registry for several real estate areas in the governorate. When official work resumed in 2019, it became evident that the registries for some of those areas had been lost or damaged, necessitating their restoration. However, those trying to restore their real estate documents face an uphill battle.

Properties 1196 and 1197 in the Kafr Batna area, administratively part of the Arbin district in Rural Damascus, are among those whose documents were damaged or lost and were therefore subject to judicial restoration.

On November 23, 2023, the real estate judge of the Rural Damascus governorate issued two identical rulings, numbered 33 and 34, concerning the properties 1196 and 1197. In these rulings, the judge decided to cancel the objections to the properties due to “absence and non-attendance,” meaning the objections were dismissed after the objection period had ended, as the objector failed to submit the documents proving their right to the property.

According to Law No. 33 of 2017, which covers the restoration of lost or damaged real estate documents, restoration involves a set of procedures leading to the issuance of a reliable substitute for the damaged real estate document or the completion of one of its elements. There are two types of restoration: administrative restoration, which occurs when sufficient documents are available to restore the document at the relevant Directorate of Cadastral Affairs, and judicial restoration, which is employed when the documents are completely destroyed.

During the process of judicial restoration for damaged or lost real estate documents, the real estate judge of Rural Damascus announced, on November 24, 2022, a schedule of documents and ownership documents for properties numbered 1181-1200 in the Kafr Batna real estate area. This announcement was based on the decision of the Minister of Local Administration No. 4 dated May 28, 2019, the commencement order for judicial restoration No. 2078 dated June 15, 2019, the provisions of Article 8 of Law No. 33 of 2017 and its executive instructions, and the land registry laws issued by decrees No. 188-189 of 1926 and their amendments, as well as the delimitation and census system issued by decision No. 186 of 1926.

The procedures for judicial restoration are similar to those for delimitation and census under Decision No. 186 of 1926. This includes the publication of the decision to commence the delimitation and census process, the timing, and property information, as well as inviting stakeholders to attend the process. In the decision, the judge outlines the damaged real estate documents, the property numbers, the real estate area, and the sections of the real estate document that need to be restored. Stakeholders are given a six-month period to submit any documents they have that support their claims to the properties with damaged documents. All of this information is published in the Official Gazette and two local newspapers.

If there are no objections within this period, the real estate judge decides to validate the real estate documents submitted by the rightful owners, such as ownership deeds, court rulings, or notarised documents. Based on these documents, new land registries are created to replace the damaged ones. Consequently, the judge issues a final, unappealable decision to confirm the ownership.

In the event of an objection, the rightful owner or their legal representative may submit an objection supported by documents proving their right. After the six-month objection period ends, the land court reviews the submitted objections within two months, in chambers, meaning without summoning the objectors.

The judge only considers objections concerning the existence of rights duly recorded in the Land Registry to be restored. For example, if someone claims ownership of a property based on a purchase contract, they must provide evidence that this right is previously documented in the Land Record within the Land Registry. This could include, for instance, a previously filed lawsuit note on the land record issued by the civil court to confirm the sale in favour of the claimant. The judge’s role is to verify the existence of this note based on the documents available and those submitted by the objector.

Subsequently, the real estate judge issues a decision confirming the restoration of the required land registries. The judge attaches a detailed report to the decision, which includes the property numbers, the real estate area, the parts that have been restored, and the names of the owners. The decision also addresses the outcome of any objections, including the cancellation of objections. The judge will cancel an objection if the objector fails to submit supporting documents within the six-month period to prove their right to the property in question. This was the case for properties 1196 and 1197 in the Kafr Batna real estate area.

Additionally, the judge decided to place a note on the land records for properties 1196 and 1197, indicating that the rightful owners are entitled to either file a lawsuit to “annul the registration” of the property under someone else’s name within five years or to claim financial compensation for the damage caused by the registration of the property under another person’s name within 15 years. These lawsuits must be filed in the regular courts, and the Directorate of Cadastral Affairs must remove this note from the property record once the specified period has expired.

The judge’s decision is considered as a personal notification and can be appealed to the Civil Court of Appeal within 15 days. After the appeal period has passed, the court sends the judge’s decision to the relevant Directorate of Cadastral Affairs for implementation and to open the new property records.

Explained: Executive Instructions for the Forestry Law

25-06-2024/in Analysis & Features, HLP /by Rand Shamaa

On January 14, the Ministry of Agriculture and Agrarian Reform issued Decision No. 5, which included the executive instructions for Forestry Law No. 39 of 2023. Similar to Law No. 39 of 2023, these instructions impose restrictions on the actions of private forest owners and require them to obtain licences from the ministry to manage and develop their forests under the ministry’s supervision.

Among these restrictions, the executive instructions mandate that owners submit a licensing application to the zoning unit of the ministry in the governorate, allowing them to manage their private forests. The licensing application must be accompanied by proof of identity, proof of ownership, and a cadastral statement of the property. A licensing application can also be submitted based on a land lease contract certified by the municipality.

The zoning unit, affiliated with the Ministry of Agriculture, operates in forested areas within the agricultural directorates. It is authorised under Law No. 39 of 2023 and its executive instructions to carry out various forestry activities and projects. This unit is distinct from the agricultural extension unit, which is part of the Agricultural Extension Directorate in the Ministry of Agriculture and is responsible for monitoring and training farmers.

If the forestry land is co-owned by a group of owners, the licensing application must be accompanied by a consensual partition document certified by the court. This is an agreement approved by all heirs in the civil court and issued by a judicial decision. The application must also include a written, notarised commitment from the applicant, declaring that they will not infringe upon the shares of other partners, under penalty of having their licence cancelled if opposition from any partner arises later, and a commitment to adhere to the Forestry Law and its executive instructions. If the private forests include co-owned lands that have not yet undergone delimitation and census process, the applicant must submit a cadastral statement issued by the Survey Office in the Land Record and a plan specifying the location and coordinates of their share of the property.

Another restriction imposed by the executive instructions requires private forest owners to obtain a licence if they wish to collect medicinal and aromatic plants from their land. This measure aims to preserve forest species from extinction. However, this contradicts Regulation No. 186 of 1926 on Land Delimitation and Census, which considers the property to include all plants and trees on it, thus making them the owner’s right. Consequently, the licensing requirement restricts the owner from benefiting from the fruits of their land, which is a fundamental aspect of property ownership rights.

The executive instructions specify three situations where a private forest owner is prohibited from utilising their forest land:

If the forest plants are rare or endangered species: The determination of this is made by a decision issued by the Minister of Agriculture.
If the private forest is a natural extension of state forests or within the buffer zone of state forests: This buffer zone includes lands within 200 metres of the state forests, with forest coverage exceeding 70 percent.
If the removal of forest by the owner causes erosion in adjacent state forests: For example, if an owner of a private forest adjacent to state forests wishes to remove some trees, it is prohibited if it leads to degradation and erosion of the state forests’ soil.

On the other hand, depriving the owner of utilising their forest grants them the possibility of receiving compensation, albeit through a complex process outlined in the executive instructions. The zoning unit must send a dossier on the prohibition of the owner’s use of specific forests to the Agricultural Directorate. This directorate coordinates with the Ministry of Finance, the Farmers’ Union, the General Commission for Scientific Agricultural Research, and the General Commission for the Management and Protection of State Properties established under Law No. 43 of 2023. These entities form a committee to review the prohibition case and determine the appropriate compensation. The committee may propose compensation for the period of temporary restriction on forest use, submitting the proposal to the Minister of Agriculture, who can issue a decision and refer the dossier to the sub-committee on compensation under the Ministry of Agriculture.

According to the executive instructions, the committee can propose the complete expropriation of the property if deemed necessary. This proposal is then submitted to the minister, who issues a decision and refers the dossier to the subcommittee on expropriation in the Ministry of Agriculture. It is noteworthy that Forestry Law No. 39 does not mention the possibility of expropriating private forest land. Therefore, it seems unusual for the executive instructions to allow for the expropriation of private forests when the original law does not include this provision. This is considered an illegal overreach, especially since expropriation results in the owner being permanently deprived of their property without real guarantees of fair compensation.

Additionally, another restriction imposed by the executive instructions is that private forest owners must obtain a licence to reclaim their land for agricultural use if its forest coverage is less than 40 percent. They are also bound to preserve rare forest species. After submitting the application, a committee consisting of the head of the zoning unit in the governorate and employees from the Ministry of Agriculture will inspect the land to be reclaimed. The committee will determine the condition of the land, its forest coverage percentage, the type and number of trees to be cut for reclamation, the required time for this, and the reclamation period. Once the licence is granted, work must commence within three months, otherwise the licence will be considered void. Land reclamation in this manner is not subject to the provisions of the Agricultural Land Reclamation Law No. 29 of 2012.

Explained: Badia Lands

07-05-2024/in Analysis & Features, HLP /by Rand Shamaa

After being approved by the Parliament in its session held on February 2, 2024, Syrian President Bashar Al-Assad issued Law No. 7 of 2024, amending certain articles of Law No. 62 of 2006 concerning badia (“barren” or “steppe”) lands. The amendments included an increase in the financial penalties imposed for the following violations of badia lands: grazing livestock, deforestation, farming and agriculture.

Law No. 7 of 2024 distributed the value of those fines collected as follows: 80 percent go to the general treasury, and 20 percent to personnel with judicial authority and employees of the General Commission for Badia Management, Development and Protection (GCBMDP).

Badia lands are subject to the management of the GCBMDP, established under Decree No. 78 of 2011, with the aim of developing, protecting, and enhancing the local community, resources, infrastructure, and coordinating with relevant entities to implement economic, social, environmental, and service development programmes in the badia.

The amendments included granting branches of the GCBMDP in the governorates the right to seize cultivated badia lands, farming tools and machinery, and crops and sell them by mutual agreement according to contract law, and deposit their value in the general treasury of the state.

According to No. Law 7 of 2024, the Minister of Agriculture and Agrarian Reform can appoint personnel from the GCBMDP and its branches, empowering them with judicial authority after they take the legal oath before the Civil Court of First Instance. These personnel are responsible for enforcing regulations against those who trespass on prohibited lands for farming, cultivation, or grazing, and for seizing the tools and crops used. Violations are referred to the branch of the GCBMDP, which then submits them to the Public Prosecutor’s Office to initiate public prosecution against the trespassers.

These new judicial authorities are supported by local committees for badia protection formed by governors in their governorates, each chaired by the relevant district director, with membership from a staff member of the branch of the GCBMDP, a staff member from the Farmers’ Union in the governorate, and a land surveyor from the State Property Department.

Law No. 7 stipulates that the demarcation of badia lands is going to be done by decree based on the proposal of the Minister of Agriculture, including the fixation of badia land boundaries on maps and plans. Syrian media reports suggest that the area of badia lands is approximately 8 million hectares, out of 18 million hectares representing the entire area of Syria.

Previously, Law No. 62 of 2006 considered badia lands as state-owned properties. Consequently, badia lands are now subject to Law No. 252 of 1959, retroactively regulating the provisions of state-owned properties. Law No. 62 of 2006 prohibits the acquisition of rights to dispose of these lands due to possession, and prohibits occupation without a licence. This is confirmed by Article 2 of Law No. 62 of 2006, which does not allow encroachment on badia lands and does not recognise any rights for encroachers.

It is worth noting that Amiri lands are state-owned properties. The difference between them and badia lands is that the state grants individuals the right to dispose of Amiri lands, whereas it does not grant this right over badia lands.

Furthermore, those who encroach upon badia lands no longer have the right to claim compensation equivalent to rent if they are removed from the land they occupy. Compensation equivalent to rent is the value of renting a similar property in the same area, if it is leased or invested in regularly. Those who encroached upon badia lands before the issuance of Law No. 62 cannot acquire the right to be registered in the Land Registry if delimitation and census processes have been carried out on the land.

Law No. 62 exempted from the prohibition anyone who had previously acquired a proprietary right over badia lands by virtue of a judicial decision made before the issuance of the previous law for badia lands, Law No. 140 of 1970. This law had recognised rights of usufruct and disposal for badia lands prior to its issuance date, but it prevented the acquisition of any proprietary right over these lands after its issuance.

Additionally, Law No. 62 exempted those with registered rights on badia lands in the Land Registry before the mentioned date. The law also exempted lands expropriated under Law No. 161 of 1958, the Agrarian Reform Law. In fact, these rights do not need a provision to exempt them because their holders have obtained decisions or registered them.

Law No. 62 allowed the acquisition of certain rights over badia lands in only three cases: firstly, if the state sells them for the establishment of industrial, commercial, tourist, service, or agricultural facilities. Secondly, badia lands that fall within the zoning plans of administrative units. Thirdly, badia lands are subject to the Euphrates and Khabur dam projects and all irrigation projects implemented by the state.

Law No. 62 distinguishes between non-irrigated badia lands and irrigated badia lands, with specific utilisation methods outlined. The law prohibits the cultivation or farming of non-irrigated lands and limits their use to irrigation projects and animal husbandry only. As for irrigated badia lands, they benefit from government irrigation projects, which are invested in according to the plan set by the Ministry of Agriculture.

It is not yet clear whether badia lands, as part of state-owned properties, will be managed and protected by the General Commission for the Management and Protection of State Properties established under Law No. 43 of 2023, to manage and protect state-owned properties and maintain and invest in them to generate steady and permanent resources for the state treasury.

Flood Compensation Falls Short in Akkar Plain

27-02-2024/in HLP, News /by Rand Shamaa

On February 6, Syria’s Council of Ministers announced the allocation of compensation of SYP 6 billion (USD 455,000 at the official market rate) for those affected by floods in the Akkar Plain region of the Tartous governorate. The plain was hit by rains and floods on January 12, flooding about 1,000 hectares of agricultural land, damaging crops, and ruining around 4,000 plastic greenhouses. Many farmers in the Akkar Plain have faced difficulties proving ownership of their lands, hindering their right to receive compensation.

The Akkar Plain extends on both sides of the Homs-Tartous international road, reaching Tripoli in Lebanon. Dozens of villages and towns, the largest of which is Safsafah, are spread throughout the Plain, through which five rivers run: Al-Kabir Al-Janoubi, Al-Abrash, Al-Arous, Khalifeh, and Abu Al-Ward. The Plain is also rich in groundwater, making agriculture the primary source of income for its 100,000 inhabitants, especially those working in greenhouses. There is an agreement for sharing the waters of the Al-Kabir Al-Janoubi River, signed with the Lebanese side in 2002, which included the construction of a joint dam near Talkalakh in Syria. However, the dam has yet to be implemented.

In the Akkar Plain, farmers face an array of ownership-related obstacles. Farmers and their heirs still commonly own many of the agricultural lands. One of the reasons for the failure to terminate common ownership in the area is the incomplete delimitation and census work that began in 1925. After the government enacted the Agrarian Reform Law No. 161 of 1958, the process of terminating common ownership came to a halt. The policy was revived in 1980 under Legislative Decree No. 166 of 1967, which ordered the consolidation of agricultural lands and the elimination of common ownership. However, with the passing of Law No. 31 of 1980, the government set a cap on private ownership. Efforts to terminate common ownership restarted in 1988 but faced problems related to the transfer of massive expropriated lands in the area from the ownership of the Ministry of Agriculture and Agricultural Reform to the Ministry of Irrigation. In 2007, the Ministry of Agriculture halted its work to terminate common ownership, and no relevant measures have been taken since.

There are no reliable figures on the number of farmers who own their land in the Akkar Plain or the sizes of these lands. Agricultural reform and reclamation laws led the state to expropriate large parts of the Plain, exceeding 60 percent of its total area. The government redistributed some of these expropriated lands to farmers between 1958 and 1974, a process that stopped without official justification. It is important to note that not all the lands that farmers received under the agricultural reform law were officially documented in the Land Registry. This is in part due to incomplete delimitation and census work.

Some farmers managed to register their ownership of land they purchased from institutions affiliated with the Ministry of Agriculture before sales stopped in 1986. Another group of farmers, known as “social research” recipients, were allocated agricultural reform lands based on studies showing that they owned no other land. This group also managed to register their ownership.

The area also sees many “mughariseh” contracts, which, according to the Agricultural Relations Regulation Law No. 56 of 2004, grant farmers partial land ownership at the end of the contract in exchange for planting and cultivating crops.

It’s also worth noting that there is a widespread practice of leasing state lands, public properties that are unauthorised for occupation, and properties belonging to Waqfs of Tripoli (Lebanon) that the Waqfs of Tartous manage (Waqfs are Islamic charitable endowments). There are disputes over public ownership between the Ministries of Irrigation and Agriculture.

These complexities in the distribution of ownership, bureaucratic procedures, sporadic expropriation policies, and unfinished delimitation and census work have deprived the owners of the Akkar Plain of rightful flood compensation.

Therefore, on February 6, the Council of Ministers responded to the damages from the floods by relying on two memoranda issued by the Ministry of Agriculture and the Ministry of Irrigation. The two memoranda based their compensation valuation on the results of previously formed damage assessment committees tasked with cataloguing agricultural damages in the Tartous governorate. These committees were originally formed under Tartous Governorate Decision No. 961 of 2009 to inventory and evaluate the assets of sewage facilities in Tartous City. It’s unclear how these committees are related or what their expertise is in assessing flood damages in the Akkar Plain.

The state provided compensation to some of those affected, and the costs for rehabilitating infrastructure, services and agricultural roads, as well as drainage clearing, were covered through the “Drought and Natural Disaster Agricultural Production Impact Mitigation Fund,” established by Decree No. 114 of 2011 and linked to the Minister of Agriculture. The fund has a cap on its compensation budget, which depends on its assets and revenues from the public treasury, the General Union of Farmers, donations, and the interests of its funds in banks. According to the decree of its establishment, the compensations provided by the fund cannot exceed 80 percent of its assets. Its mission is to compensate those whose agricultural production is affected by droughts, natural disasters, and other changes in climate conditions.

Local media outlets reported that the farmers were disappointed by the small compensation they received but did not provide information on the value of this compensation. Local media also reported that the government only compensated a minority of farmers, which farmers also lamented. The Minister of Agriculture stated that those who owned their land and had obtained agricultural regulation documents were eligible for compensation.

The Tartous City Council, during its first session in 2024 between January and February, proposed to re-submit a repeated recommendation to the Council of Ministers for the establishment of an Akkar Plain Management and Investment Authority, similar to the authority created for the investment of Al-Ghab Plain. This official authority would be responsible for infrastructure projects, sewage, and water drainage to face floods, especially the annual threat of Al-Kabir Al-Janoubi River flooding, which poses a risk to farmers in the winter season.