What Is “Prevention of the Exercise of a Right”?

What Is “Prevention of the Exercise of a Right”?

One of the significant claims concerning immovable property is the claim for prevention of the exercise of a right, commonly referred to as momanat az haq. Given its importance, this claim may be pursued not only in criminal proceedings but also before the civil courts. In essence, where a person’s acts prevent the right holder from exercising a specific legal right, a claim for removal of the obstruction may be brought. In such circumstances, the right holder may refer to the competent court and seek the requested relief.

How to Bring a Claim for Prevention of the Exercise of a Right Before the Courts

Definition and Legal Concept

Pursuant to Article 159 of the Iranian Code of Civil Procedure, a claim brought by a person seeking the removal of an obstruction to the exercise of their easement right or usufruct right over another person’s property is referred to as a claim for prevention of the exercise of a right.

If the claim is brought before a civil court, proving a prior history of exercising the right is sufficient. However, if the claim is pursued through criminal proceedings and a criminal complaint is filed seeking removal of the obstruction, establishing the claimant’s ownership is required. Accordingly, a person seeking to initiate criminal proceedings to remove the obstruction may file a criminal complaint only if they are the owner. If the person merely holds a right of use over the property, the matter must be pursued through a civil claim.

Constituent Elements of the Claim

Complete Prevention

For the prevention of the exercise of a right to be established, it is necessary that the person fully prevents you from using the relevant right. For example, if a person’s acts prevent you from entering your property, this may constitute the prevention of the exercise of a right. By contrast, if the person merely obstructs your use of part of a house, this is generally not treated as prevention of the exercise of a right and may instead be pursued as a case of nuisance or interference.

Prior Possession or Prior Exercise of the Right

Another essential element is proving a prior history of possession or use. Seeking removal of the obstruction requires that you have previously exercised an easement or usufruct right and that another person has now prevented you from benefiting from it. If your entitlement is established, the court will order the removal of the obstruction.

Proving the Prevention of the Exercise of a Right

To prove this claim, you must establish your prior right in the relevant property. For instance, if in the past years you have used a well located on a neighbor’s land to irrigate your fields and the landowner later builds a wall around the land and prevents you from accessing the well, you may request removal of the obstruction if you can prove your prior use of that well. Witness testimony is one method of proving such prior use. Once the court confirms the existence of the right, it will issue a judgment ordering the removal of the obstruction.

In claims for the prevention of the exercise of a right, nuisance, and unlawful dispossession, the claimant must prove that the subject matter of the claim has been unlawfully taken out of their possession, pursuant to Article 161 of the Iranian Code of Civil Procedure.

Types of Prevention of the Exercise of a Right

This claim may be brought for the obstruction of an easement or a usufruct.

An easement right is a right by which a person has a right over another person’s immovable property. An example is the right of passage across a neighbor’s agricultural land to reach one’s own farmland.

A usufruct right is a right to benefit from the profits or use of property when the property’s ownership does not belong to the beneficiary. For example, an owner may grant another person the right to benefit from a property while retaining ownership.

Prevention of the Exercise of a Right in Co-Owned Property

Under Iranian law, when ownership of a property is held by two or more persons, it is considered co-ownership. If one co-owner prevents another co-owner from exercising their lawful right, that conduct may constitute prevention of the exercise of a right, and the claimant may file a civil petition seeking an order requiring removal of the obstruction. For example, if a person replaces the lock on the entrance to a shared parking area and prevents other co-owners from entering with their vehicles, the exercise of a right may be prevented, and the other co-owners may refer the matter to the court and request removal of the obstruction.

Frequently Asked Questions