The Role of Executing an Official Deed in the Transfer of Interests in Real Property with Emphasis on the Practical Jurisprudence of the Courts

Abstract

Divergent judicial opinions regarding the validity or invalidity of transferring interests in real property through either official deeds or private agreements have given rise to significant legal disputes before the courts. This issue is particularly important because some judges regard the execution of an official deed as the fundamental requirement for the transfer of real property interests and consider it an essential element of ownership validity, whereas others deem the existence of a private document sufficient for such transfers. Contemporary judicial practice faces a serious challenge due to the absence of a unifying precedent concerning the role of executing an official deed in the transfer of interests in real property. Nevertheless, resolving such disputes requires, in the first instance, recourse to statutory provisions. Consequently, the role of the Registration Law, particularly Articles 22, 46, 47, and 48, as well as the Law on Mandatory Official Registration of Transactions Involving Immovable Property—representing the most recent legislative intent—becomes highly significant. Accordingly, this study seeks to ascertain the governing legal rule primarily through statutory law and, where necessary, through authoritative Islamic jurisprudential sources and legal principles, provided that they are not contrary to Islamic law. Notwithstanding the foregoing, the examination undertaken in this thesis provides a key to understanding the validity or invalidity of transfers of interests in real property effected through either private documents or official deeds. This is especially important because legal scholars and doctrinal authorities have rarely engaged in a comprehensive analysis of this issue, and the theory of invalidity has never gained substantial acceptance. Moreover, general references to certain related matters have not been sufficient to prevent confusion and inconsistency within the courts.