Despite the strong linguistic similarity between the two terms, the difference between them is fundamental. The Action for Preventing Opposition (Ownership Action) is classified among ownership claims, whereas the Action for Preventing Disturbance (Possession Action) falls within possession claims. Confusion between the two frequently arises in courtrooms, where one term is sometimes used to refer to the other. For this reason, this article aims to clarify both concepts and highlight the distinctions between them, from both doctrinal and procedural perspectives.
Action for Preventing Opposition (Ownership Action)
This type of lawsuit is one of the ownership actions filed by the owner or the holder of the right to dispose of state-owned land, in which the plaintiff requests the court to establish their ownership of a real right over property held by the defendant.
Such ownership claims may include ownership of the property itself, ownership of the right of use or residence, the right of usufruct, or the right of superficies. It is also called an action for asserting a right. The lawsuit may be filed to confirm an already existing right or to remove an obstacle that prevents its lawful exercise.
The action for preventing opposition is brought against the usurper. When filing the claim, the plaintiff must estimate the annual benefit value of the property in order to pay the required court fees, as this value determines the level of appeal:
- If the annual value exceeds one million Iraqi dinars, the decision of the Court of First Instance (Al-Bada’a Court) is appealable both by appellate and cassation review.
- If it is less than one million dinars, the decision is appealable only by cassation review.
This is based on Article 32 of the Civil Procedure Law No. 83 of 1969, as amended by Law No. 10 of 2016.
There are multiple forms of this action. One example is when a usurper takes possession of, and uses, another person’s property without consent or legal justification. Another example is when a divorced wife, granted the right to live in her ex-husband’s house for three years by a personal status court ruling, continues occupying the house after the granted period expires. In this case, her possession becomes unlawful — her hand shifts from one of trust to one of liability.
Procedures for the Action for Preventing Opposition
The court, after calling both parties and beginning the public hearing, reviews the property registration certificate submitted by the plaintiff to verify its content — whether the plaintiff is the sole owner, a co-owner, or holds a right of disposal.
The court requires the plaintiff to clarify the nature of the opposition alleged in the lawsuit.
The defendant is instructed to respond to the claim and present any defenses.
If the defendant argues that their possession of the property was with the plaintiff’s consent, this defense is rejected because such permission ceases once the plaintiff initiates legal action, even if the claim of prior consent were proven.
The court instructs the plaintiff to prove their claim and sets a date to conduct an on-site inspection of the property in the presence of a land survey expert.
If the defendant denies the acts of occupation or usurpation, the plaintiff must prove the claim by witness testimony or other acceptable evidence. The court retains discretion in assessing whether the usurpation occurred.
If the defendant admits occupying the property but claims a lease contract, the plaintiff is questioned about the contract’s validity.
If the plaintiff denies the lease, the burden of proving its existence lies with the defendant.
If the defendant fails to prove it, they may request the court to direct a decisive oath to the plaintiff.
Based on the available evidence, the court then decides either to uphold the claim and rule to prevent opposition, or to dismiss it for insufficient proof.
Action for Preventing Disturbance (Possession Action)
This type of claim is regulated under Article 11(2) of the Iraqi Code of Civil Procedure No. 83 of 1951, which states:
“An action for preventing disturbance is admissible when the disturbance to possession has occurred but has not yet reached the level of dispossession.”
It is also addressed in Article 1154 of the Iraqi Civil Code No. 40 of 1951, which provides:
“Whoever possesses a property for one full year, and then faces a disturbance in their possession, may within one year from the occurrence of the disturbance file an action before the Court of First Instance to prevent such disturbance.”
This action is considered the primary legal instrument for protecting possession, as it safeguards legitimate possession (not permissive possession) and remedies physical or legal interference with the possessor’s enjoyment of the property.
To establish a valid possession claim, several conditions must be met:
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The plaintiff’s possession must be legal, stable, peaceful, and free from defects such as coercion or illegal seizure. Some scholars note that, in this type of action, the court is not concerned with investigating the legal origin of possession, but only with confirming that the possession has existed peacefully and continuously for at least one year.
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The disturbance must have actually occurred —
- Material disturbance includes acts such as creating a watercourse or constructing a building on the land.
- Legal disturbance includes actions like sending an official notice through a notary public demanding the possessor vacate the property under a claim of ownership.
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The action must be filed within one year from the date of the disturbance. This is a prescriptive limitation period — failure to file within it extinguishes the right to sue.
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The disturbance must not amount to dispossession; if possession is forcibly taken, the appropriate remedy becomes the action for recovery of possession, under Article 11(1) of the same law.
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Importantly, the occurrence of actual damage is not required. It is sufficient that an act constitutes interference with possession, even if no loss results.
Purpose of the Action for Preventing Disturbance
The aim of this action is to preserve public order and ensure social stability by preventing individuals from disturbing the existing state of possession — even if the alleged wrongdoer is, in fact, the rightful owner. Ownership rights can always be proven under ordinary evidentiary law, but possession deserves its own protection as a matter of social necessity.
Possession serves as a presumption of ownership — the law assumes that the possessor is likely the true owner. Therefore, the law allows the possessor to initiate this action because it is relatively easy to prove and inexpensive compared to ownership disputes.
A key precedent is found in Court of Cassation Decision No. 73/Second Civil/1969 (dated 29/12/1969), which held:
“A trespass against the registered owner of land that is properly surveyed and described in official land records constitutes a trespass by a usurper, regardless of how much time has passed, because usurpation does not convey ownership and the statute of limitation does not apply. However, the lapse of time preventing the hearing of the claim applies only to unregistered property.”
(Reference: Article 10(1) of the Law of Real Estate Registration.)
Procedures for the Action for Preventing Disturbance
When the hearing date arrives, the court must verify the legal requirements for the action:
that possession has been peaceful, stable, continuous for at least one year, not amounting to forcible dispossession, and that the claim was filed within one year from the disturbance.
The court instructs the plaintiff to clarify the nature of the disturbance claimed and orders the defendant to respond.
If the defendant denies the claim, the plaintiff must prove both possession and disturbance by evidence such as witness testimony.
The court may also order a site inspection with a surveying expert, who submits a report and technical plan.
When both sides present personal evidence, the court weighs their credibility according to Article 82 of the Evidence Law No. 107 of 1979 (as amended).
After completing the proceedings, the court issues its judgment either granting or rejecting the claim.
Distinction Between Ownership and Possession Actions
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The three types of possession actions listed in Article 11 of the Civil Procedure Code must be filed within one year from the interference date. In contrast, ownership actions have no such time restriction and are not barred by limitation.
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If the plaintiff loses an ownership claim, they cannot subsequently bring a possession claim.
However, if they lose a possession claim, they may still file an ownership claim, according to Article 12(2) of the Civil Procedure Code. -
The Court of First Instance (Al-Bada’a Court) has original jurisdiction over ownership disputes exceeding one million dinars; such judgments are appealable within 15 days and subject to cassation within 30 days.
Possession actions, however, are decided in final instance by the same court but can be challenged before the Court of Appeals acting in its cassation capacity within 30 days.
Conclusion
From the foregoing, it is clear that the action for preventing opposition primarily serves to protect ownership and rights of disposal, whereas the action for preventing disturbance aims to protect possession and prevent interference with it.
Although the two terminologies appear similar, their legal nature, procedural requirements, and judicial consequences differ significantly.
Distinguishing between them enhances judicial clarity, reduces procedural confusion, and ultimately promotes stability in real estate transactions and protection of legal rights, whether related to ownership or possession.
References
- Lafa Shamil Al-Ajeeli, Rules of Actions and Protection of Possession: A Study in Light of Legal Provisions and Jurisprudence, p.96.
- Munir Al-Qadhi, Explanation of the Code of Civil and Commercial Procedure, Comparative Law Library, p.44.
- Mohammed Helmi Al-Basheer & Talha Ghani (1982), Real Rights (Part I), University of Baghdad Press, Faculty of Law, p.200.
- Ahmed Abu Al-Wafa (1952), Civil and Commercial Procedures, Dar Al-Ma'arif, Egypt.
- Haider Awda Kazim (n.d.), Practical Procedures in Civil Lawsuits (Part II), p.523.
- Supervised by Sami Hassan Al-Anki — Prepared by Saif Abbas, Rules of the Actions for Preventing Disturbance and Preventing Opposition: A Legal and Judicial Study, Judicial Institute, Baghdad.
- Haider Awda Kazim, Practical Procedures in Civil Lawsuits: A Comparative Study with Judicial Applications, p.388.
We call upon legal professionals, researchers, and legislative authorities to take practical steps toward clarifying and standardizing the legal understanding of the Action for Preventing Opposition and the Action for Preventing Disturbance in Iraqi law, as both play a vital role in protecting property rights and ensuring legal stability. We also invite law firms in Iraq to contribute to raising legal awareness, simplifying procedures, and providing professional support in this important area.
