Standing on Shaky Ground: Adverse Possession in Egypt

A principal unifying factor in early land administration in the MENA region reflects the predominance of various currents of Islam, with its egalitarian traditions and tenets of social justice and equality. The 19^th Century Ottoman administration codified the prevailing land tenure systems into a set of regulations that governments still follow in much of the region; however, the independent states emerging in the 20^th Century carried out redistributive land reforms, creating new layers of norms. Amid these developments, current land-tenure systems have not successfully addressed many age-old inequities and have created new ones, including the problems of landless rural and urban households, small farmers’ continuing struggle to compete for limited and fragmented cropland, and pastoralists’ continuous loss of their traditional grazing areas.

The lack of coherence and harmony among a multiplicity of laws and regulations, as well as inconsistent implementation, have led to legal uncertainty of land tenure, especially for the poor, who depend on environmental resources for their habitat. Unresolved, such conditions often lead to negative impacts such as dispossessions and forced evictions. This is consistent with the global situation, in which rights of adverse possession provided for by law often are limited or denied by subsequent regulations (Rolnik, para. 84).

In Egypt, the time-honored popular practice of squatting on land—so-called wadh`a yad (laying of a hand); i.e., seizure of a piece of land without any affirmative legal documents—is a major challenge to the state “reclaiming” urban land for redevelopment, desert land and land along the banks of the Nile. The resulting disputes often lead to confrontation and even violence. Most commonly, the terrain being reclaimed is desert land, but the urban centers also have become zones of tenure contention, especially under redevelopment plans instigated under former President Husni Mubarak. The conflicts now emerge among all sort of parties, ranging from major families, small-scale farmers or landowners, to large corporations, whether or not the parties hold legal rights.

Wadh`a yad is a form of adverse possession (AP) that dates back to a Hadīth (Prophet`s tradition) in Islam, in which the Prophet Muhammad [صلعم] reportedly said: “He who revives a wasteland (mawāt), owns it.” The land could be close to the city or in a rural area, with or without the permission of an imām.

From the time of the Ottoman Empire, which ruled Egypt over 1517–1798, land tenure was perceived in two parts: Private ownership and public (ownership related to land belonging to the state). The Ottomans applied new laws in 1858 to ensure the receipt of a regular and specified amount of revenue—as taxes, fees and tithes—for the state treasury based on tenancy rates, as the state considered itself the true owner of land and, thus, maintained the right to collect revenue from it. The Ottoman Land Code of 21 April 1858 defined five classes of landownership: milk (freehold), waqf (endowment), mīrī (claimed by sultan), matrūk (reserved for public use) and mawāt (wasteland).

Current Egyptian law addresses adverse possession (AP) in the 1949 Civil Code (§968), which largely followed the French model. That statutory development set aside Ottoman legal traditions, including the Ottoman notion of vast mīrī lands, assumed to belong to the sultan. The modern concept of “state land” replaced that category, but divided such assets of the commons into two categories: Public property of the state (ملك عام للدولة) and private property of the state (ملك خاص للدولة).

In Egypt, AP of previously unowned, nonstate land and property is theoretically possible under the following conditions:

• Uninterrupted possession for more than 15 years with the possessor’s intention to obtain this property for himself/herself;

• The AP should be stable and continuous, not subject to legal counterclaim, conflict or enforcement of possession against other parties;

• The property subject to AP should have a legal function or use (i.e., not held for illegal uses such as narcotics trade, or an unlicensed house of prostitution, etc.);

• The property subject to AP should be related to real estate (buildings or lands within a planning area) or agricultural land, or vacant land resulting from the demolition of existing structures;

• Under law, in general, and explicitly in the Egyptian Civil Code, the AP claimant must not have acquired the property and/or achieved the other conditions through duress. This is consistent with the principle of ex injuria jus non oritur (law does not arise from injustice), or ما بنى علي باطل فهو باطل (what is built on illegitimacy is illegitimate).

   

  AP of privately owned or un-owned land is prohibited under other categories and conditions:

1. The land is state-owned;
2. The property is used for illegal purposes;
3. No-man`s land with no real estate or agricultural land use (i.e., desert land), since this would be subject to the first option of a counterclaim by the Ministry of Defense as land or property required for military purposes;
4. The land is subject to a legal dispute over ownership within the 15 years period challenging the AP claim;
5. The possessor admits to the right of another actual owner (e.g., paying real estate taxes or other administrative fees in the name of that owner);
6. The possessor willingly abandons her/his AP claim to others.

AP in Case of Inheritance

For persons who inherit an AP property and whose other heirs also have rights to the property, but don`t claim it, the period required to establish AP is 33 years of uninterrupted possession, as distinct from the 15-year period in other cases.

State-owned Properties and Charitable Endowments (Awqaf)

AP was possible for such type of Islamic or Christian endowment properties until Article 970 of the Egyptian Civil Code, as amended in 1957, prohibiting AP for such category of property. A further amendment in 1970 granted the state’s administrative bodies the right to remove encroachments on such land and properties without a court order. The administrative bodies would be required to obtain a court order only in a case in which the possessor had an officially registered contract proving his/her right to possession.

Regularizing Illegal Possession

However, in 1984 and 2006, laws and decrees allowed state administrative bodies to sell squatted properties to their possessors under certain regulations and conditions. However, authorities have used these provisions very rarely to legalize informal settlers AP rights. In practice, this form of AP has been applied typically to benefit investors taking state-owned land, especially in land-reclamation and desert-urbanization projects at great public cost for infrastructure and installing water facilities.

In other rare cases, such as AP claims at the informal `Izbat Khairallah neighborhood and the Nile River islands of al-Qursaya and Dahab, claimants have won their right to sustained land use (haq al-intifa’), but without rights to sell or bequeath the land. In these cases, Egyptian courts have granted squatters land-use rights based not on black-letter legal grounds, but on the judge’s determination of social need, whereby resulting social and economic consequences would exceed the legal benefits of ordering displacement and dispossession.

“Urban land reform”

An instance of urban land reform actually arises from the legislation following the Egyptian Free Officers’ coup of 1952. Before that time, under the 1948 Code, any claimant theoretically could obtain legally secure tenure to any type of land if s/he continuously occupied that land undisputed as of 1934; that is, for 15 years before the Code’s adoption, or for any 15-year period thereafter.

However, thereafter, Egyptian legislation distinguished the conditions of AP in urban land from that in desert land. Law 124 (1958) established that any AP claims to desert land (i.e., not then in an urban-planning area and not on agricultural land) would be subject to a further condition: The Defense Ministry then would have to sign off on any such claim, certifying that the land is not subject to military purposes and, therefore, no counterclaims by the state. (See the first option noted in 3. above.) Law 124 does not require the state to have made such a claim or declaration of a military area prior to the AP claimant’s petition for legal recognition of her/his claim.

Since Law 124 applies explicitly and uniquely to desert lands, excluding others (land in urban planning areas and agricultural land), it omits to authorize the state’s military organizations or other institutions any such special option over the other land categories. The state contests AP claims in urban-planning areas categorized as state public or private property. (Agricultural lands in Egypt always have an owner, so AP claims on those lands normally would be highly contested and/or constrained by other law.)

Subsequent legislation has prohibited the possibility for AP claims. Law 100 (1964) extends state control over unused lands, and gives the army special tenure and acquisition rights over desert lands, while Law 143 (1981) expanded those powers and set out terms for compensation in cases of confiscation.

The practice of AP, in the form of individual encroachments on the defined “state” lands, became widespread after President Anwār al-Sādāt`s1973 initiative for desert reclamation for new urban centers as people exploited the AP provision(§874) of the Law 131 (1948), permitting anyone to own land in return for cultivating it. Law 143 effectively criminalized AP in most parts of the country.

Despite this, the practice continued until Law 30 (1984) applied a 6-month time limit for legitimate AP claims for cultivation. Law 134 (2006) provided another chance for squatters to regularize their already-cultivated holdings. However, squatting on state lands surged again in 2008, when the state stopped enforcing the ban on the practice.

In practice, the state has not been thorough or consistent in contesting lands squatted for urbanization, whether or not they are subject to an urban plan. Notably, therefore, in an indirect way, the combination of specific law and laissez-faire practice constitutes a rare kind of urban land reform, where such examples are scarce. That distinction makes AP in Egypt noteworthy. However, the AP rights provided in the 1949 Civil Code and the capping of AP claims on planned urban land under Law 124 (1958) were not accompanied by a program of legal aid to those would-be claimants, and their consequent lack of legal titles leaves room for much latter-day ambiguity and contention.

The government or other parties claim to own lands long after the residents satisfied their statutory requirement to claim AP. However, inhabitants often do not know that the state claims the land on which they dwell, or supports the claims of other parties, unless and until they face the counterclaim to over their AP (whether formalized or not), which may manifest as coercion, threat of forced eviction, or a ban on repairs that leads to dilapidation.

Such is the complaint of numerous residents of the Maspero Triangle quarter of central Cairo. Many families have maintained generations of residence in the neighborhood, dating back to the late Ottoman period. Meanwhile, the same ground is a priority focus of grandiose redevelopment plans dubbed “Cairo 2050” (now part of “Egypt 2052”), a grand scheme to remove inhabitants and reconstruct the city that has persisted beyond the Mubarak era. The resulting contention over the tenure of this urban space has exemplified the ambiguity—and the high stakes—of the legal obscurity over adverse possession and secure tenure for land-dependent Egyptians that has endured over time.