Legal paper

Part 1:

Each country has its own history and historical trajectories for different reasons, it is important to understand that each country is bound by its own law. For instance, in Morocco, we apply Islamic law or we can call it Shariâa law according to the interpretation of the Islamic scholars Dr. Malik.  Therefore, Islamic or Shariaa law matters or principally deal with three points only: Marriage, divorce, and inheritance. On the other hand and following the French protectorate, Morocco has a second law system, which is the civil law system. It deals with everything else that Islamic law do not cover. Among the civil law, there is the real property conservatory system that the French has brought to Morocco.

Today, in our case a group of foreign investors would like to get a sell contract for the piece of land that they are willing to buy in order to establish their factory. They have already agreed on the price, which is 4 million dirhams, thus both parties the buyers and owners went to meet a “notaire” so that they can proceed with the legal actions to protect their right in this investment. To clarify more the details that they need to follow, we must first explain the real property conservatory system, and then the difference between the real property registered and not registered. The procedures to register their real property, and the task of notaire.

• The real property conservatory system in Morocco:

Around the world, the property conservatory plays a major role in developing the economic field. The texts of the laws establishing “the real property conservatory system” in Morocco were indorsed in 1913; afterwards the administration was recognized in 1915 under the protectorate.

The real property conservatory system is under the ministry of agriculture and development, and we can find 53 conservatives in all the provinces. It was also said by Mr. Saad Hassar that it is one of the best systems following the Australian one. Thus, land registration is a procedure that allows the owner to register his properties, and all the properties have documentation that proves to whom they belong.

Again, the documentation contains the location of the property, the size, the transactions, and if it has a previous owner.

The purpose of the system is to provide a sense of security for citizens. After registering your property, no one can dispute you, and the law will recognize your property. The real property conservatory system protects you from any possible claim and it helps in some situations, for instance, when there is death of the owner, the property goes directly to the descendants thus it preserves the citizens right. In addition, it is a guarantee for banks, it gives you the chance to get a loan and transactions will be more effective and efficient.

Registering properties is mandatory in Morocco; however, we can find a high number of properties that are not registered and especially in the rural area. They do neglect this part because they find that the procedures raises costs and takes time to go until the administration to sign papers; therefore, they’d rather keep their properties not registered. In case, they want to sell or buy, they must seek the help of Adoul.

• Register versus non-registered properties

Morocco is a country that does not have comprehensive land legislation: the legal framework governing land is a mix of customary law, Islamic law, French civil law and a series of decrees, some of which date from the early 1900’s.

Two systems of land registration exist:

•        Formal system maintained by the Land Registry

•        Traditional system maintained by local traditional leaders.

According to USAID, about 30% of land in Morocco, almost all of it in urban areas, is registered under the formal system. The process has been streamlined in recent years: registration requires eight procedures, about 47 days, and payment of 4.9% of the property value. One of the significant barriers to rural land registration is the number of parcels with multiple owners.

The Land Registry is responsible for issuing title deeds and making the registry updated with land transaction information to the extent that parties to transactions provide such information. Title deeds are a number of documents which are considered as the proof of ownership of the property. They also show past transfers of ownership. They are mandatory in order to transfer the property and so to deduct the title.

In registered land, title deeds represent official copies of the registered title, title plan, and any document referred to in the register that can be found at Land registry.

Traditional systems recognize informal documentation of land rights; land rights are evidenced by the Islamic title deed (Melkia) or by witnesses and records maintained with traditional leaders and the landholder. The Melkia properties are governed by Muslim law. Unregistered buildings are not listed at the Property Conservation Agency (Conservation Foncière).

It must be known that to register a « Melkia » property can be long and above all a possible source of additional costs.

Title to unregistered property is proved by presentation of a milkia, which represents an official document by which 12 witnesses confirm before two Adouls (Shari’a law notaries) that the person claiming title to the property has the right of « Melkia » and lawful possession.

PART 2:

• Registration of a property

According to the World Bank’s report in 2014, Morocco ranked 156th out of 188 countries to register property in. A report published by the United States Agency for International Development further supported this ranking, attributing the “lack of comprehensive policies governing land, water, forests and mineral resources”, “underdeveloped legal frameworks and limited, ambiguous formal laws governing land and natural resources” and “slow progress on women’s rights of access to and control over land and natural resources” as hindrances in Morocco’s land registering process. These are prominent, pressing realities as Morocco strives to get more land registered under the Real Property Conservatory System.

When land is not registered under the Real Property Conservatory System, Islamic law is applied to the property and its affairs regarding inheritance and taxation. A con of this system is that there are generally no definite measurements of the land and it relies on oral recognition of the land size, which can be proven inaccurate. The most reliable method to ensure that land is accurately measured and recorded is through the Real Property Conservatory System.

• Procedure of registering a property

Registering a property procedure consists of six steps:

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