How effective are preventative measures in protecting property buyers before official registration?

Abstract

      This research addresses the problem of the of means that protect the buyer in real estate sale contracts before the completion of the official registration process in the Iraqi real estate registry under the applicable laws (Iraqi Civil Law - and Resolution 1198), as the buyer is considered vulnerable to the seller’s refusal without the availability of effective legal tools that guarantee the stability of the transaction.

      The research demonstrated the limitations of the existing judicial means, such as the suit for the difference between the two substitutes and the suit for ownership, in terms of their slowness and weak deterrent effect, in addition to the inability of the principle of compensation to achieve effective and prior protection .

      The research sought to present two practical proposals within the Iraqi legal framework as preventative measures to protect property buyers. The first involves activating an irrevocable power of attorney when concluding an external contract to ensure that registration is completed despite the seller's withdrawal. The second involves granting the external contract an official certification by a notary public, with notification to the Real Estate Registration Department, as a temporary measure to protect buyers, inspired by the French and German systems. This is in addition to the legal rules and principles of Islamic Sharia in this regard .

   The research relied on a comparative analytical approach to some extent, and addressed the laws in Egypt and some Arab countries, as well as the laws of France and Germany in documenting real estate sales contracts, and the rules and principles of Islamic law as presented above, in order to clarify ways to improve the means of protecting real estate buyers under Iraqi laws in a way that enhances the stability of transactions in the field of real estate sales.

   Accordingly, the scientific research plan was divided into two sections, the first on: the reality of legal protection means for property buyers before official registration, and it included two requirements, the first on: the legal framework for property buyer protection means, and the second on: evaluating the effectiveness of legal protection means for property buyers, while the second section on: the possible preventive means to enhance the protection of property buyers and it included two requirements, the first on: the irrevocable agency, and the second on: documenting the external contract with a notary public.

   The researcher used 45 sources, including: 7 legal and Sharia books, 13 academic scientific research, 1 master’s thesis, 13 Iraqi, Arab, French and German laws, 9 judicial decisions between Iraqi, Egyptian, French and German and 2 French sources.