Kuwait Court of Cassation principle number 514

Summary: - The administration’s seizure of real property to allocate it to public benefit without taking the procedures required by law for expropriation. Usurpation entailing its liability for compensation, without ownership of the property passing to the usurper. The implication thereof. Ownership of the property remains with its owner despite the State’s seizure of it until a decision is issued expropriating it for public benefit or a final judgment awarding compensation is rendered. The challenged judgment’s departure from this view, considering that the disputed land had become public property and had ceased to be capable of dealings by private 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 the legal procedures. Error. - Law No. 5 of 1959 concerning Real Estate Registration. Its not altering the nature of sale contracts transferring ownership rights. The nature of the change it introduced therein. The transfer of those rights, including ownership, after having been a necessary consequence of a valid contract, became deferred until after registration. The other provisions of the contract and the parties’ obligations thereunder. Their remaining in force without change. The implication thereof. A person who contracted for a disposition capable of transferring ownership of real property may claim for himself, even before registration, ownership of the property disposed of as against the transferee. The reason therefor. A person who guaranteed the transfer of ownership to another may not assert it for himself against that other person. The passage of that compensation due for expropriation. - The purchaser of real property is a particular successor to the seller and succeeds him in all his rights, including the right to seek compensation for usurpation of the property. - The municipality’s seizure of the disputed land without following the procedures prescribed in the Expropriation Law. Usurpation giving rise to its liability for compensation assessed in lieu of expropriation of the property. 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 sold that inherited share to the appellant under an irrevocable power of attorney and an unregistered sale contract, and that the appellant, as purchaser, is regarded as her particular successor and is entitled to receive the compensation prescribed for this seizure of the disputed land, giving effect to the consequences of the assignment of the right and in compliance with the respondent’s warranty of delivery and non-interference. The challenged judgment’s departure 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 benefit without taking the procedures required by law for expropriation constitutes usurpation entailing its liability for compensation and does not transfer ownership of the property to the usurper.. Accordingly, ownership of the property, despite the State’s seizure of it, remains with its owner until a decision is issued expropriating it for public benefit or a final judgment awarding compensation is rendered. However, the challenged judgment departed from this view when it considered that the disputed land had become public property and had ceased to be capable of dealings by private 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 the legal procedures. It is therefore erroneous in this respect. Law No. 5/1959 concerning Real Estate Registration did not alter the nature of sale contracts transferring ownership rights; all it introduced therein was that the transfer of those rights—including ownership—after having been a necessary consequence of a valid contract, became deferred until after registration. As for the other provisions of the contract and the parties’ obligations thereunder, they remain in force without change. A person who contracted for a disposition capable of transferring ownership of real property may not claim for himself, even before registration, ownership of the property disposed of as 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 regarded as a particular successor to the seller and succeeds him 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 thereof, 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 Court, Government. This is not altered or affected by the appellant’s failure to register his instrument of title, on the foregoing legal basis, since in this capacity he has become the person entitled to the compensation assessed in lieu of expropriation of the property. Since the challenged judgment also departed from this view and ruled that the respondent was entitled to receive the value of her inherited share in the compensation awarded for the municipality’s seizure of the disputed land, despite its finding that she sold that share to the appellant under Power of Attorney No. 6357/1990, it violated the law, requiring its cassation on this ground without the need to examine the remaining grounds of appeal.