The right of disposition in real estate is considered one of the broadest and most important real rights, as it grants the owner complete authority over the owned object. This right consists of three interconnected fundamental pillars, which give its owner absolute control over the property.

It can be said that the first pillar is the right of use, which enables the owner to directly use their property for residential or work purposes. The second is the right of exploitation, which allows them to reap the benefits of the property, such as collecting rental value or agricultural returns. The third, which is the focus of this guide, is the right of disposition, defined as the owner's authority to transfer the ownership of the property, or to create or terminate other real rights over it.

The Right of Disposition in Real Estate According to the Iraqi Legislator

Iraqi law has addressed the concept of the right of disposition in real estate with remarkable precision. Law No. 43 of 1971 concerning real estate registration defines real estate disposition as any disposition that leads to the creation of a right, such as an original or dependent real right, or its transfer, modification, or termination.

This definition is comprehensive, as it covers all legal actions related to the property. However, the law imposed an essential condition: that a real estate disposition is not considered effective unless it is registered with the competent Real Estate Registration Department. This condition is more than just an administrative procedure; it is a fundamental pillar that completes the disposition from a legal standpoint.

This legal precision of the Iraqi legislator's vision shows the importance of protecting real estate rights. The laws do not absolutely invalidate unregistered dispositions, but rather redefine their legal nature, leading to the creation of a different type of obligation. For example, any contract for the sale of real estate that occurs outside the registration department, even if it is notarized between the two parties, is considered legally incorrect and does not lead to the transfer of ownership.

Instead, this contract is classified as a promise to transfer ownership, which is an unnamed contract that creates contractual liability between the parties. In the event that one of the parties defaults on the obligation, the aggrieved party is not entitled to claim ownership of the property itself, but their right is limited to claiming financial compensation for the damages they have incurred.

This is an important point for investors, as it shows the major risks of relying on informal agreements and confirms the need for specialized legal advice to ensure that all official procedures are completed correctly.

Types of Real Estate Dispositions

These dispositions in Iraqi law vary to include all possible aspects of dealing with property and can be classified into two main types: legal dispositions and material dispositions. Legal dispositions arise by virtue of a contract, will, or inheritance, while material dispositions make a change in the nature of the property, such as correcting the type, partition, or consolidation.

To provide a comprehensive overview, these dispositions can be classified into main categories, as shown in the following table:

Main Classification of Dispositions	Examples	Importance
Exchange	Sale, barter, partnership	Transfer of ownership, in whole or in part, in exchange for consideration or through a partnership.
Restrictive	Mortgage, judicial seizure, endowment (waqf)	Restricting the owner's right to dispose of the property to guarantee the repayment of a debt or to achieve a charitable or religious purpose.
Temporary	Lease, loan for use, easement	Granting the right of usufruct of the property for a specific period (lease) or permanently for the benefit of another property (easement).
Judicial	Public auction, expropriation for public benefit	Dispositions that are carried out in execution of a final judicial judgment or a legal decision with the force of a judicial judgment.

These classifications include precise legal details regarding the right of disposition in real estate ownership, as exchange dispositions include sale and purchase transactions and barter, in which one property is exchanged for another, and partnership, in which two or more parties agree to share the ownership and benefit of the property.

As for restrictive dispositions, they are considered a legal means to guarantee the rights of others. In a mortgage, for example, the property is used as collateral for financing or repaying a debt, while a judicial seizure restricts the owner's right to dispose of the property to guarantee the repayment of a specific obligation. The endowment (waqf) is also considered a restrictive disposition that prevents the disposition of the property by sale or gift.

In addition to these categories, there are dispositions with a special legal nature that require detailing, such as the right of easement, which is defined as a real estate right that follows the dominant property and is not a personal obligation on its owner. Since the right of easement is a right subordinate to the property, it transfers with it when it is sold or mortgaged and cannot be separated from it.

The contract for the sale of real estate under construction also constitutes a unique case, as it combines the obligation of sale and the obligation of contracting, and is distinguished by the fact that it does not end with the death of one of its parties, unlike a power of attorney contract, which ends with the death of the principal or the agent. Iraqi law allows a property to be re-registered in the name of a specific person if they have held it in good faith and as an owner for a period of not less than 15 years without interruption, with the need to fulfill the necessary legal procedures for that.

The Procedural Framework for Transferring Real Estate Ownership in Iraq

The process of transferring ownership is considered a series of organized procedures governed by specific laws and regulations, such as the right of disposition in real estate ownership. At the forefront of these is the Real Estate Registration Law, which defines the general framework, in addition to the Law on the Estimation of Real Estate Value and its Benefits No. 85 of 1978, which regulates the work of committees for inspection and value estimation.

The Registration Department is concerned with registering all real estate dispositions and final judicial rulings that affect real estate rights. To complete any ownership transfer transaction, the concerned parties must submit a set of basic documents, which include a national card or civil status identity, a residence card, in addition to recent personal photos and a copy of the property's record and map.

After these documents are completed, a series of official procedural steps begin in the various state departments, which are:

• Name verification: It is checked whether there are any disposition restrictions on the property or on the concerned persons.

• Inspection and value estimation: A joint committee of employees from the Registration and Tax Department is formed to inspect the property and estimate its real value and benefits, which ensures the proper legal application of the right of disposition in real estate ownership.

• Review of financial departments: The transaction is sent to the municipality and tax departments to ensure that the due taxes and fees are paid and that the seller is cleared of any financial liability.

• Payment of fees: The real estate registration fees are required to be paid by a certified check.

• Documenting the declaration: The seller's and buyer's declaration is taken, and their signatures and fingerprints are documented in the real estate register in front of the competent assistant.

• Issuing the deed: A temporary real estate deed is organized for the buyer, and then the transaction is sent to the decentralized audit body for approval and the issuance of the permanent deed.

It is clear from these sequential procedures that the transfer is not just one step, but a complex process that requires coordination between several government agencies. Although this multi-party procedural nature aims to achieve accuracy and transparency, it actually shows potential weaknesses that can be exploited by forgers.

Therefore, the professional management of this complex process by our company is vital, as it helps protect individuals from falling into the trap of fraud or delay, and ensures full compliance with all legal and administrative frameworks.

Restrictions and Challenges to the Right of Disposition of Property

The right of disposition in real estate is not an absolute right, as it may be subject to various restrictions and challenges regulated by the provisions of the law. These restrictions can be divided into voluntary restrictions placed by the owner themselves, and legal ones imposed by the state or a judicial ruling.

Voluntary Restrictions

These are represented by a "condition of prohibition of disposition" that the owner places in a specific contract, by which the recipient is prevented from taking certain actions. For this condition to be valid, the law requires a legitimate motive or a serious interest that calls for it, and the prohibition must be for a reasonable period. The task of assessing the reasonableness of the period falls to the judge, who intervenes to determine it based on the circumstances of each case.

Legal Restrictions

These appear in cases of purchase and judicial seizure, which restrict the owner's right to guarantee the repayment of a specific debt. However, the law allows some dispositions on seized real estate, such as:

• Dispositions that are made based on a judicial ruling, such as expropriation or executive sale, where the seizure transfers to the value of the property.

• Dispositions that increase the value of the property, such as correcting its type or inheritance rights, so the seizure notice is transferred to the new record.

• Correction of the property's type or its judicial partition, the notice is transferred to the record of the section allocated to the person on whom the seizure was placed.

Disputes and Fraud Cases

Disputes over the right of disposition in real estate are common and include ownership disputes such as boundary encroachment, contract disputes such as breach of terms, in addition to rental and construction disputes. These disputes are resolved through negotiation and settlement, or arbitration and mediation, or through judicial procedures in the courts.

Forgery cases in real estate dispositions are a serious challenge, especially with the tense operations targeting the properties of Iraqi expatriates. These operations rely on complex mechanisms, such as issuing forged documents in cooperation with official bodies, and using forged general powers of attorney to sell the property without the owners' permission.

In the quest to combat this phenomenon, the Ministry of Justice has taken partial measures, such as stipulating the personal presence of the owner to cede their property. Although this measure is a positive step, it is not applied uniformly throughout Iraq, which leaves loopholes that can be exploited.

These varying policies show that relying solely on government procedures may not be enough, which highlights the need for a proactive and strong role for specialized legal monitoring and assistance from us.

The Role of the Legal Advisor in Securing Real Estate Dispositions

Given the legal and procedural complexity surrounding issues of the right of disposition in real estate, the use of a legal advisor's expertise has become an indispensable necessity. Legal consultation is considered the first line of defense to protect individuals from potential legal errors that could have costly consequences.

The legal advisor accurately analyzes the legal status of the property, verifies the title deed, and ensures that there are no restrictions or disputes that hinder the disposition. Our company offers a comprehensive package of real estate legal services, specially designed to meet the needs of individuals and companies. These services include drafting and reviewing contracts to ensure the protection of the client's interests and to avoid any legal loopholes that may be exploited later.

The company also manages all ownership transfer procedures in accordance with the right of disposition in real estate ownership, and provides support in litigation cases concerned with real estate disputes. The value of these services is inherent in the deep experience enjoyed by our company's team, which includes expert lawyers and former judges, which gives them a precise understanding of the legal system and its mechanisms.

The company is distinguished by an approach that goes beyond providing traditional legal services. It does not only seek to solve problems after they have occurred, but focuses on avoiding them from the beginning by providing proactive advice that takes into account various risks, including those related to reputation.

In a complex business environment like Iraq, where challenges range from disputes to fraud, this preventive approach is considered a strategic investment to maintain the security of real estate assets. This professional approach makes Osama Tuma for Legal Services and Advisory a reliable partner for the client, not just a service provider, as it guarantees the client integrated guidance that enables them to succeed and avoid risks before they occur.

Conclusion

The right of disposition in real estate in Iraq, although it represents a great investment opportunity, is surrounded by a complex legal and procedural framework full of challenges. Verifying the integrity of assets, managing transfer procedures, and dealing with the risks of fraud and forgery are all requirements that require rich and comprehensive legal expertise.

If you need a free consultation or to start a legal transaction with an Iraqi lawyer, just contact us.