Kuwait Court of Cassation principle number 195

Summary: - The administration’s seizure of real property to allocate it to public use without taking the procedures required by law for expropriation. Usurpation entailing its liability for compensation without transferring ownership of the property to the usurper. The consequence thereof. Ownership of the property remains with its owner, notwithstanding the State’s seizure of it, until a decision is issued expropriating it for public use or a final judgment awarding compensation is rendered. The judgment appealed against departed from this view by considering that the disputed land had become public property and ceased to be capable of transactions between individuals merely because the municipality seized it, without taking account in that regard of the judgment awarding compensation for the usurpatory seizure of that land without following legal procedures. Error. - The municipality’s seizure of the disputed land without following the procedures prescribed in the Property Dispute Law. Usurpation entailing its liability for compensation assessed in lieu of expropriation of the property. An example: the respondent’s lack of entitlement to her inherited share in the compensation amount arising from the municipality’s seizure of the land left by her predecessor in title, on the basis that she had sold that inherited share to the appellant pursuant to an irrevocable power of attorney and an unregistered sale contract, and that the appellant, as purchaser, is her particular successor and is entitled to receive the compensation determined for this seizure of the disputed land, giving effect to the assignment of rights and in compliance with the respondent’s guarantee of delivery and non-interference. The judgment appealed against departed from this. A violation of the law requiring its cassation. Rule: It is established in the jurisprudence of this Court that the administration’s seizure of real property to allocate it to public use without taking the procedures required by law for expropriation is usurpation entailing its liability for compensation and does not transfer ownership of the property to the usurper.. Accordingly, ownership of the property remains with its owner, notwithstanding the State’s seizure of it, until a decision is issued expropriating it for public use or a final judgment awarding compensation is rendered. However, the judgment appealed against departed from this view when it considered that the disputed land had become public property and ceased to be capable of transactions between individuals merely because the municipality seized it, without taking account in that regard of the judgment rendered in Case No. ..../1999 Civil, which awarded compensation for the usurpatory seizure of that land without following legal procedures. It is therefore erroneous in this respect. Law No. 5/1959 concerning Real Estate Registration did not change the nature of sale contracts transferring ownership rights; all it introduced was that the transfer of those rights—including ownership—after having been a necessary consequence of a valid contract, became deferred until after registration. All other provisions of the contract and the parties’ obligations thereunder remain in place without change. A person who contracts for a disposition intended to transfer ownership of real property may not, even before registration, claim ownership of the property disposed of against the transferee, because a person who guarantees the transfer of ownership to another may not assert it for himself against that other person. Just as the transferor may not dispute with the transferee ownership of the property subject to the disposition, he may not dispute with him the compensation assessed in lieu of expropriation of that property; rather, the transferee is regarded as the person entitled thereto. The purchaser of real property is considered the seller’s particular successor and takes his place in all his rights over it, including the right to seek compensation for usurpation of the property. It is also established that the municipality’s seizure of the disputed land on a date preceding the appellant’s purchase of it, without following the procedures prescribed in the Expropriation Law, establishes its liability for compensation toward the respondent, whose right to claim her inherited share in this compensation passes to the appellant, to whom ownership of her inherited share in that land devolved, as her particular successor. He is entitled to receive her inherited share in the compensation amount awarded in Case ..../1996 Commercial Civil, Full Jurisdiction, Government. This is neither altered nor affected by the appellant’s failure to register his instrument of title, on the basis set out above, since in that capacity he has become the person entitled to the compensation assessed in lieu of expropriation of the property. As the judgment appealed against also departed from this view and ruled that the respondent was entitled to receive the value of her inherited share in the compensation awarded in return for the municipality’s seizure of the disputed land, notwithstanding its finding that she had sold that share to the appellant pursuant to Power of Attorney No. 6357/1990, it violated the law, requiring its cassation on this ground without any need to examine the remaining grounds of appeal.