Legal Effects Of Property Usurpation by State Departments -Judicial Study-

Abstract

The Usurpation Incident is illegal act that leads to raising the tort liability due to the violation of the rights of the rightful owner of the property and depriving the owner from the benefits of his property unjustly. Therefore, the law imposes a penalty to remedy the damage and to ensure the legally established sanctity of the infringement, so the law removes the hand of the usurper against the usurped property and obligates him/her to return the property to its owner, beside compensating the property owner for the benefit of the property that he was deprived of without reason, in the form of equivalent rent, in addition to the compensation for the damages that befall the usurped property during the period of usurpation, such as damage to the property that accompanies the usurpation incident. This comes in application of the general rules, the damages that injuring others as a result of the act of infringement requires compensation. The judicial rulings issued by the Iraqi judiciary, most notably the decisions issued by the Federal Court of Cassation, have been applied accordingly in relation to cases of usurpation of real estate committed by individuals towards the properties of others, thus, the rulings in this regard come in a proper application of the law. In case if the illegal squatter is a state department, the judicial rulings do not oblige the usurper to return the property to its legal owner. We concluded from this research that this discrimination in the rulings is based on the identity of the usurper between the individuals and the state department has no legal ground to support it. We have recommended the necessity of retracting this principle of not returning the property, and unifying its provisions in both cases, regardless of the status and identity of the usurper, in accordance with the law, in a way that achieves justice and protect private real estate property