What Is Unlawful Possession?

What Is Unlawful Possession?

In Iranian law, unlawful possession refers to the wrongful seizure and occupation of property carried out without the owner’s consent and contrary to the law. In simple terms, when a person has possession of a property, and another individual takes it over without legal authorization, that act may constitute unlawful possession. Under Article 158 of the Iranian Civil Procedure Code, unlawful possession is defined as a claim by the former possessor that another person has removed the property from the former possessor’s control without permission and without lawful authorization.

What Is the Difference Between Unlawful Possession and Theft?

The key distinction is that unlawful possession primarily concerns immovable property, such as a house, land, or a shop. In contrast, theft typically involves movable property, such as money or personal items, and is treated as a criminal offense. In unlawful possession cases, an intention to claim entitlement may exist, but the secrecy commonly associated with theft is generally absent. As a result, unlawful possession may have both civil and criminal dimensions, depending on the circumstances of the case and the evidence presented.

Types of Possession Under the Law: Lawful, Unlawful, and Adverse Possession

To understand unlawful possession more accurately, it is helpful to distinguish among the main categories of possession:

• Lawful possession: A person holds the property based on a valid legal basis, such as a lease agreement, a title deed, or an official power of attorney. This form of possession is legitimate and protected by law.
• Unlawful possession: A person takes control of property without any permission or legal authorization. This may give rise to civil or criminal proceedings.
• Adverse possession: A specific form of unlawful possession in which the property is taken without the prior possessor’s consent, sometimes through force or coercion. The element of wrongdoing is central to this category, and it may be pursued through civil and, in certain circumstances, criminal channels.

Understanding these categories helps you determine the appropriate legal action if a property dispute arises.

Core Requirements for Filing an Unlawful Possession Claim

To bring an unlawful possession claim before the court, three essential elements must be established:

1. Prior possession: You must show that you previously had control or use of the property.
2. Wrongful taking: The opposing party took possession without your consent and without legal authority.
3. Ongoing possession: The opposing party continues to possess the property.

If you fail to prove any of these elements, the claim may be dismissed. Evidence such as utility bills, lease documents, witness testimony, and satellite images can be highly influential. A key point is that in an unlawful possession claim, you do not necessarily need to be the owner. Prior possession is the primary issue.

Unlawful Possession vs. Ownership Claims

A common misunderstanding is the belief that only a registered owner can file an unlawful possession claim. This is incorrect. In unlawful possession proceedings, the decisive factor is prior possession and the right to use the property, not necessarily formal ownership. By contrast, in ownership litigation, you must establish legal ownership through valid documentation.

Accordingly:

• If you aim to restore your prior possession without proving ownership, an unlawful possession claim is typically appropriate.
• If you aim to prove legal ownership, you should consider an ownership claim or an ejectment action, depending on the circumstances.

These claims may be filed simultaneously. However, unlawful possession is generally processed more quickly and is often used to restore control of the property without delay.

Unlawful Possession of Movable and Immovable Property

In most cases, unlawful possession concerns immovable property, such as houses, land, shops, and gardens. In limited circumstances, movable property such as vehicles, industrial equipment, or valuable livestock may also be subject to a similar claim. If you are the lawful possessor and another person takes the item from you without permission and through coercion, you may pursue a claim regarding movable property.

In practice, courts often require stronger proof for movable property cases because prior possession can be more difficult to establish. Depending on the facts, other legal routes such as recovery of property or theft allegations may also be considered. In both categories, prior possession remains the central element, although proving it is typically easier for immovable property through documents such as utility bills and local reports.

Civil Procedure Steps for an Unlawful Possession Case

The civil process for pursuing unlawful possession in Iranian courts generally follows these steps:

1. Preparing the petition: You submit a formal petition to the General Civil Court, including the parties’ details, a clear narrative of events, and a request to restore possession.
2. Submitting evidence: Utility bills, photographs, witness statements, and police reports are commonly used to establish prior possession and the wrongful nature of the new possession.
3. Referral and hearing date: After filing through the Judicial Service Offices, the case is assigned to a court branch, and a hearing date is set.
4. Court hearing: The judge reviews the evidence, hears the parties, and may hear witnesses to determine whether the possession is unlawful.
5. Judgment: If unlawful possession is proven, the court issues an order for the removal of possession and for restoration to the former possessor.

In addition to civil litigation, a criminal complaint may be available in certain cases, as explained below.

Competent Court for Unlawful Possession Claims

Under Article 11 of the Iranian Civil Procedure Code, an unlawful possession claim concerning immovable property must be filed in the General Civil Court where the property is located. For example, if the property is located in Shiraz, the claim must be filed in Shiraz even if you reside in Tehran. For movable property, jurisdiction may depend on the defendant’s residence or the location where the possession occurred.

If you intend to pursue the criminal route, the matter should be raised before the Public and Revolutionary Prosecutor’s Office where the property is located. Because jurisdictional errors can lead to dismissal and wasted time, legal consultation is often advisable before filing.

How to Draft and File an Unlawful Possession Petition

The first and most important step is preparing a precise petition using the Judiciary’s official format, available through Judicial Electronic Service Offices. Your petition should include:

• Full details of the claimant and the defendant.
• The exact address of the property.
• The date you began possession and the date the defendant took over.
• The evidence supporting the claim that the possession is unlawful.
• Your requested relief is commonly the removal of unlawful possession and restoration of the prior situation.

All supporting documents should be submitted at the time of filing, including bills, images, police reports, witness statements, lease agreements, and any other relevant records. Filing is typically completed through the Adl Iran system or Judicial Service Offices. Any deficiency in information or documentation may lead to rejection, so careful preparation is essential.

Documents Commonly Used to Prove Unlawful Possession

Effective evidence is critical. You must show prior possession and an unauthorized takeover by the other party. Common documents include:

• Utility bills: Evidence of actual use of the property
• Lease agreement or sale agreement: If you were a tenant or purchaser
• Local affidavits and witness statements: Confirmation by neighbors or residents
• Police or local council reports: Especially if you reported the incident promptly
• Photos and videos: If available, they can be highly persuasive
• Formal notice: A legal notice requesting the vacating or cessation of possession

Well-organized documentation typically increases credibility and supports a stronger outcome.

The Role of Witnesses and Police Reports

Witness testimony and police or local council reports can be decisive, particularly where you do not have a title deed or written lease.

• Witnesses: Individuals who can confirm your prior possession and that the defendant took over without permission. Neutral witnesses, such as neighbors, are often preferable. Their full details should be recorded, and they should be prepared to appear in court.
• Police report: If you reported the event, the officer’s report can help demonstrate both prior possession and the wrongful nature of the takeover. The more detailed and well-documented the report, including photos and mission notes, the greater its evidentiary value.

When formal documents are limited, the combination of credible witnesses and official reports can significantly strengthen your case.

Unlawful Possession vs. Ejectment and Eviction Proceedings

Many people confuse unlawful possession with ejectment or eviction, although these are distinct legal actions with different foundations and objectives.

• Unlawful possession: A claim to restore prior possession after an unauthorized takeover. Ownership is not required.
• Ejectment: A claim by the registered owner to remove an unauthorized occupant. Proof of ownership through formal title documentation is essential.
• Eviction: A claim typically arising from a contractual relationship, such as a lease, where the tenant remains after the contract ends.

If you are the owner with a formal title, ejectment is often the appropriate path. If you were the lawful possessor but not necessarily the owner, unlawful possession may be suitable. If a lease relationship existed and has ended, eviction is typically pursued.

Criminal Complaint for Unlawful Possession

In addition to the civil claim, unlawful possession may, in certain cases, be pursued as a criminal matter. Under Article 690 of the Islamic Penal Code, a person who unlawfully and without authorization takes possession of property or obstructs another’s lawful use may face criminal penalties.

To proceed criminally, it must generally be shown that:

• The accused acted intentionally and knowingly.
• You previously had lawful possession.
• The accused entered or took over without a court order or legal authorization.

A criminal complaint is filed with the prosecutor’s office in the jurisdiction where the property is located. The case may be referred to law enforcement by judicial officers. If wrongdoing is established, the accused may face penalties including imprisonment, an order to remove unlawfully possessed items, and potential financial penalties. Criminal proceedings may move faster than civil litigation, but proving intent is often a key challenge.

Time Limits for Filing an Unlawful Possession Claim

A common question concerns limitation periods. Under Iranian judicial practice, there is generally no specific time limit for filing a civil claim for unlawful possession, provided the unlawful possession is ongoing.

However, criminal complaints may be subject to limitation periods. Under Article 105 of the Criminal Procedure Code, if more than five years have passed since the alleged offense and no complaint has been filed, criminal prosecution may no longer be possible. For this reason, prompt action after the incident is strongly recommended.

Practical Tips for Success in an Unlawful Possession Case

Several practical measures can significantly improve your chances of success:

• Collect reliable evidence such as bills, contracts, photos, videos, and witness statements.
• Act promptly, since a shorter time gap often strengthens the claim.
• Send a formal legal notice before filing, where appropriate.
• Obtain legal advice to avoid procedural errors.
• Present clear and consistent statements in the petition and at hearings, supported by documentation.

In many cases, a small mistake in choosing the correct claim type or drafting the petition can lead to dismissal, so careful strategy from the outset is essential.

Using a Lawyer in Unlawful Possession Cases

Although legal representation is not mandatory, engaging an experienced lawyer can make the process more efficient and reduce the risk of errors. Key advantages include:

• Professional drafting of petitions and written submissions
• Correct identification of the appropriate claim, whether unlawful possession, ejectment, or eviction
• Proper collection and organization of evidence
• Effective courtroom advocacy
• Reduced risk of dismissal due to procedural deficiencies

If you seek damages or intend to pursue criminal proceedings as well, legal counsel can be particularly valuable. For branding purposes, where the firm name is mentioned on your website, you may refer to Soroush Salamian Law Firm.

Frequently Asked Questions About Unlawful Possession