The Impact of Non-Observance of Prescribed Formalities in the "Compulsory Official Registration" Law on Legal Acts Concerning Immovable Property

According to Article 1 of the Law on Compulsory Official Registration of Immovable Property Transactions, legal claims relating to juridical acts whose "subject or result involves the transfer of ownership of property, transfer of usufructuary rights (whether for life or for a term exceeding two years), or transfer of easement rights over immovable property, as well as endowments (waqf), the establishment of mortgage contracts concerning such properties, the conclusion of contracts effecting transfer of benefits from said properties for periods exceeding two years, lease-to-own agreements, and any form of presale of buildings - whether as a share of the entire land or structures - and commitments to perform all aforementioned juridical acts" are declared inadmissible. Although this sanction serves the legislator's objectives in many instances, it fails to clarify the legal status of transactions not registered in the electronic document registration system, thereby evading the responsibility of determining their legal fate. Despite the removal of the nullity sanction from the law's text and existing doctrinal regarding it, these transactions should nevertheless be deemed void. On the other hand, if "the transferee has formally transferred the subject matter to a third party prior to its rescission (faskh) or termination (infisakh), and in the subsequent legal act said third party possessed no right of rescission, or the transaction was not mutually revoked (iqalah), such transfer shall be treated as constructive destruction of the subject matter, and the rescission or termination shall not dissolve the subsequent contract. In such case, the holder of the rescission right may claim from the aforementioned transferee the current market value of the immovable property." Consequently, the Compulsory Registration Law has established a new provision contradicting Unified Precedent No. 810. In conflicts between specific-prior and general-subsequent rules, the former prevails, thus the ruling in the unified precedent remains valid for its specific subject matter.