Kuwait Court of Cassation principle number 82

Summary: - The administration's seizure of real property to allocate it to public use without taking the procedures required by law for expropriation. A usurpation entailing its liability for compensation without transferring ownership of the property to the usurper. The import thereof: ownership of the property remains vested in its owner despite the State's seizure thereof until a decision is issued expropriating it for public use 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 transactions between individuals merely because the Municipality had 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. An error. - The Municipality's seizure of the disputed land without following the procedures prescribed in the Law on Ownership Disputes. A usurpation entailing 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 resulting 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 under an irrevocable power of attorney and an unregistered sale contract, and that the appellant, in his capacity as purchaser, is deemed her particular successor and is entitled to receive the compensation awarded for that seizure of the disputed land, giving effect to the assignment of rights and observing the respondent's warranty of delivery and non-disturbance. The challenged judgment's departure therefrom. 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 a 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 thereof, remains vested in its owner until a decision is issued expropriating it for public use 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 transactions between individuals merely because the Municipality had seized it, without taking account in that regard of the judgment rendered in Civil Action 2106/1999, which awarded compensation for the usurpatory seizure of that land without following the legal procedures. It is therefore erroneous in this respect. Law 5/1959 concerning Real Property Registration did not change the nature of sale contracts transferring ownership rights. The only change it effected 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. All other provisions of the contract and the obligations of its parties remain in force without change. A person who contracts to make a disposition that would transfer ownership of real property may not, even before registration, claim for himself ownership of the property disposed of as against the transferee, because a person who warrants the transfer of ownership to another may not assert it for himself against that other person. Just as the transferor may not contest the transferee's ownership of the property subject to the disposition, he may not contest the latter's entitlement to compensation assessed in lieu of expropriation of that property; rather, the transferee is deemed the person entitled thereto. The purchaser of real property is deemed a particular successor to the seller and takes his place in all his rights therein, 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 vis-à-vis the respondent, whose right to claim her inherited share in that 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 Action 2106/1996, Commercial Civil, Court of First Instance, Government. The appellant's failure to register his instrument of title does not alter or affect this, on the basis of the foregoing reasoning, since in that 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, notwithstanding its finding that the aforementioned woman had sold that share to the appellant under Power of Attorney 6357/1990, it violated the law, requiring its cassation on this ground without the need to examine the remaining grounds of appeal.