Action for Removal of Unlawful Possession

Action for Removal of Unlawful Possession

Throughout life, individuals have consistently encountered disputes related to ownership. Today, one of the most significant legal actions concerning immovable property before the courts is the action for removal of unlawful possession. Unlawful possession occurs when a person, by force or aggression and without the owner’s or tenant’s consent, takes possession of land or real property. An action for removal of unlawful or usurped possession is a property and ownership claim that may be pursued alongside related actions, such as the removal of an obstruction of rights.

Elements of the Action for Removal of Unlawful Possession Under Iranian Law

Method of Bringing the Claim

The issue of unlawful possession may be pursued either by filing a civil lawsuit or by initiating a criminal complaint.

Civil Action for Unlawful Possession

This action is brought by the former possessor of the property against the individual or individuals who subsequently took possession of the property in an unlawful manner.

In a civil action for removal of unlawful possession, the following matters are essential:

• The action is limited to immovable property.
• The claimant must prove prior possession of the property. Presentation of a title deed is one method of proving prior possession. If the property lacks a formal title deed, the claimant must establish prior possession through other admissible evidence acceptable to the court.
• In addition to proving prior possession, the claimant must prove that another person took possession of the property after them.
• The possession must be without consent, forcible, and unlawful.

If all these conditions are satisfied, the claimant may reasonably expect to obtain a judgment ordering the removal of possession. If the unlawful possessor alleges the existence of a purchase agreement with the claimant, the action for unlawful possession must still be filed through judicial electronic service offices. In this manner, the claimant or their legal representative may initiate the action by submitting the necessary evidence and documentation.

If the unlawful possessor has carried out construction, cultivation, or derived benefits from the property, the claimant may, in addition to seeking removal of unlawful possession, also file claims for demolition of unauthorized structures, recovery of reasonable rent for the period of possession, restoration of the property to its prior condition, and repair of damages.

It should be noted that there are situations legally treated as unlawful possession. For example, possession by an agent, worker, servant, or any other person who initially held the property as a trustee may fall under unlawful possession if, after receipt of a formal notice from the owner or the owner’s attorney demanding surrender of the property, the person continues possession. In such cases, the individual will be deemed an unlawful possessor.

Procedure for Filing an Action for Unlawful Possession

Currently, property and ownership disputes, including actions for unlawful possession, are filed through judicial electronic service offices and referred to the competent court. After the case file is formed, a hearing date is set and officially communicated to the parties. As the action for removal of unlawful possession pertains exclusively to immovable property, the competent court is the court located where the property is situated.

Criminal Unlawful Possession

If immovable property is taken without the owner’s consent, with knowledge of ownership, and with intent, this act is considered the crime of unlawful taking.

The legislator has provided that, where the legal, material, and mental elements of the offense are present, the offender shall be punished in accordance with Article 690 of the Islamic Penal Code by imprisonment for a term of one month to one year.

Differences Between Civil and Criminal Unlawful Possession

• The most important distinction is the presence or absence of the mental element. In criminal unlawful possession, the possessor acts with knowledge that the property belongs to another person.
• In criminal unlawful possession, proof of ownership is required under the Islamic Penal Code, whereas under civil procedure law, proof of the claimant’s prior possession and the defendant’s subsequent possession is sufficient.
• A civil unlawful possession claim is initiated by filing a lawsuit, while a criminal unlawful possession claim is initiated by submitting a criminal complaint.

Penalty for Criminal Unlawful Possession

Pursuant to Article 690 of the Islamic Penal Code, individuals who engage in any form of unlawful possession or obstruction of rights are subject to imprisonment from one month to one year. In addition, the court is obligated to order the removal of unlawful possession and any related disturbance.

Frequently Asked Questions About Actions for Removal of Unlawful Possession