The legal basis for the lessor’s obligation to guarantee exposure and entitlement during the validity of the lease contract and the transfer of ownership of the leased property in Iraqi and Iranian law

Abstract

This research discusses a common situation in both Iraqi and Iranian societies: the physical and legal interference with a tenant's enjoyment of the leased property, both before and after the transfer of ownership during the lease term. Due to the seriousness of this interference for the tenant, both Iraqi and Iranian legislators have regulated this process according to legal controls and rules that protect the rights of all parties. However, there are differences between the two legal systems, which form the basis of this comparison. In Iraqi legislation, the landlord's obligation to guarantee against interference and entitlement to the leased property is addressed in three articles (753, 754, and 755) of the Iraqi Civil Code No. 40 of 1951, as amended. The landlord's obligation to guarantee against interference is based on the principle that as long as the tenant pays the rent due for the use of the leased property, the landlord is naturally obligated to guarantee the tenant's peaceful enjoyment and possession. The landlord is responsible and liable for anything that threatens this enjoyment or peaceful legal possession. This obligation to guarantee against personal interference or interference based on legal grounds, issued by the landlord, is a fundamental principle. The obligation to guarantee against interference is indivisible. Therefore, if there is more than one lessor of a property, such as if the property is jointly owned by several people and these owners then lease the property, whether they acquired ownership through purchase or inheritance, each lessor is obligated to guarantee against interference with the entire property, not just their own share. Consequently, if the entire leased property, after division, falls into the share of one of the partners, that partner cannot interfere with the lessee's entire property, not just their leased share. This is in accordance with the principle that the obligation to guarantee is indivisible. Furthermore, the indivisibility of the obligation to guarantee means that if one of the lessors interferes with the lessee's property, the latter can seek full recourse against the interfering parties for the guarantee. Similarly, if interference by a third party is based on a legal ground, the lessee can seek recourse against any of the lessors for the guarantee covering the entire property, not just their share. In Iranian legislation, the legislator has regulated the provisions regarding interference in Articles 488 and 489 of [the relevant article/section]. Article 488 of the Iranian Civil Code states: “If a third party, without claiming any right to the leased property or its benefits, causes a disturbance to the tenant before the lease agreement comes into effect, the tenant has the right to terminate the contract. If the tenant does not terminate the contract, they have the right to seek redress from the person causing the disturbance and claim fair compensation. However, if the disturbance occurs after the contract comes into effect, the tenant does not have the right to terminate the contract but must seek redress from the person causing the disturbance.” Article 489 of the same law states: “If the person causing the disturbance claims a right to the leased property or its benefits, they may not seize the property from the tenant unless the other party, the landlord or the tenant, proves this right.” This is the point of comparison between Iraqi and Iranian legislation.