The hidden purpose of appealing the validity of affidavits – Tejaratnews

According to Tejarat News, if the Guardian Council agrees to the “transfer of the country’s document and real estate registration organization from the judiciary to the executive branch”, the occurrence of an undesirable event in the field of “the government’s responsibility towards national lands” will be certain; But on the other hand, probably once and for all, the ordeal of “one property, two documents” will be resolved as a good thing. Last weekend, during the review of the remaining provisions of the 7th Program Bill – approval of the Consolidation Commission – a clause was added to its Article 114, according to which, the Real Estate Registration Organization will be transferred to the Ministry of Justice. The representatives have declared the purpose of this decision to “improve land governance” and “facilitate the issuance of official documents”.

However, research shows, the basis of this big transfer should be “four minus one goal”. The main purpose, which was not mentioned in the words of the designers of this transfer, should be “determining the duty of the normal document (affidavit) and the notarized (official) document.” In a situation where all three powers have practically reached a deadlock on this issue for years and this duality of real estate documents has created a world of corruption, fraud and abuse in the real estate market for the consumer and the owner, any kind of administrative or operational change in the way of issuing the document , should lead to the solution of this duality. However, the risk of “conflict of interest” on national and state lands in case of “transfer” is serious.

Examining the new resolution of the parliament regarding the transfer of the country’s documents and real estate registration organization from the judicial branch to the executive branch, “four minus one” deciphers the hidden goal in connection with the appeal of the validity of the affidavits.

Last Wednesday, parliamentarians added an additional clause to Article 114 of the bill during the review of the Seventh Development Plan bill. Based on this additional clause, it was approved with two main goals, the country’s property and document registration organization, which is currently under the judicial branch, will be transferred to the executive branch and operate under the Ministry of Justice. In this additional clause, it is clearly stated that the purpose of this transfer is to “improve land governance” in the first place and to “facilitate the process of issuing official documents” in the next step. In this additional paragraph it is stated: “In order to improve land governance and speed up and facilitate the issuance of official documents and the full implementation of the National Cadastre Plan and due to the executive nature of the duties of the country’s Property and Deed Registration Organization, in the first year of program implementation, This organization will be annexed to the Ministry of Justice.

Investigations based on at least two unsuccessful attempts by the government during the 70s and the second half of the 80s (after the approval of the government’s housing surveillance system), show that this transfer has four minus one goals on the agenda and a guarantee that these goals will be fulfilled. can bring positive consequences for real estate traders. However, this same transfer, if necessary considerations are not taken into account, can create a kind of dangerous conflict of interests on national and state lands.

“Four minus one” important goal

Investigations show that the first goal that can be pursued by the government after this transfer is “effectively combating land grabbing in the form of taking over national lands”. In all the past years, there have been many cases of discovery of conflicts on government lands. Especially when the government, in spite of having the document or in spite of identifying some lands as national land, during the implementation of projects such as the construction of government housing, has faced opposition and claims from people who claim ownership of all or part of the national lands. . If this transfer is used to accelerate the resolution of conflicts and stabilize state ownership of national lands, it can bring good results.

“Facilitating the process of issuing official documents for the general public” is one of the other goals that can be placed on the government’s agenda as one of the positive approaches after this transfer. So that the issuance of the official document is done in the shortest possible time and at the lowest cost for the clients, and the bureaucratic and boring processes of this path are eliminated. The third objective is related to “determining the assignment of the corrupting problem of a property with two documents”. A problem that has been the main culprit of the accumulation of lawsuits and lawsuits in the courts in all the past years and decades.

According to the civil law approved in 1307 and specifically, in the three articles of 1286, 1287 and 1289, the document is of two types; Normal document and official document. Based on this, any document that lacks the elements included in the official document and has not been prepared by the officials of the official document, is considered a “normal document”. At the same time, according to Article 1289 of this law, the normal document must have the signature, seal and fingerprints of the trading persons. The simple translation (supplementary explanation) of these three provisions of the civil law says that any document or contract concluded outside the notary offices or real estate registers of the country has the status of “ordinary document” which, since it is not an “official document”, can be He also called it “informal contract” or “informal document”.

With this definition, contracts concluded and regulated by real estate consultants are considered “normal documents”. But since the late 80s with the support of the government, affidavits have gained more credibility than a normal document. At that point, the government put an end to the validity and functionality of the “old affidavits” (the same big papers) by launching the real estate transaction tracking system, and printed contracts stamped with the tracking code that the real estate transaction tracking system issues that code replaced the old contracts.

The name of this system is the country’s real estate transaction registration system, which during all these years, the government gave it credibility in such a way that it was induced for the actors of the real estate transaction market that the credibility of the tracking code and contracts sealed to it is so high that it can Replace “official document”. Of course, not all challenges stem from this misconception. For example, in many cities and especially small towns or villages in the country, the land that is traded, their only documents, is an old sheet of paper with specifications other than an official document issued by the country’s real estate agency. The buyer of these properties, in practice, has no choice but to “make a transaction in the form of signing a declaration or the same normal document”. In Tehran, almost all builders of residential buildings, before receiving a “notarized document” for each residential unit, have sold the units in the form of affidavit and are still selling them.

Of course, in the affidavits, it is stated that the seller must issue the official transfer of the property in the office within a certain time; But since the seller receives a large part of the price of the real estate transaction by signing the affidavit, if he does not want to settle the building documents by paying the debt to the municipality or other institutions, he practically avoids issuing a notarized document and finally, the work is to file a case. Jurisdiction is between the buyer and the seller. In July of this year, during the meeting between the head of the judiciary and officials and employees of the judiciary, the leader of the revolution pointed out that “informal transactions of immovable property are one of the major sources of corruption”, and emphasized: “Such transactions should be discredited.”

Earlier, on January 13, 1995, the parliament prepared a plan with the aim of requiring the official registration of real estate transactions, and finally on May 31, 1999, this plan was approved by the parliament under the name “requiring the official registration of real estate transactions.” . The purpose of approving this plan was to require all transactions and properties to receive an official document to terminate or reduce property claims in judicial courts from ordinary and informal documents (affidavits, etc.). In fact, the purpose of the parliament with this resolution was, first of all, to “increase the judicial and legal security of the people” and secondly, to “facilitate the issuance of an official document” in order to end the “old and continuous reality of property frauds through ordinary documents”. However, this resolution was returned to the parliament several times due to some ambiguities and shari’a contradictions on the part of the Guardian Council, and due to the non-resolution of the disagreement between this council and the parliament, it has been waiting for a long time to determine the task by the Expediency Council.

Investigations show that maybe if this transfer is finally approved by the Guardian Council and the country’s property and document registration organization is transferred to one of the government’s subdivisions, namely the Ministry of Justice, the issue of one property with two documents will be resolved. Because in the end, both the trustee of the issuance of the normal document (the affidavit issued by the surveillance system) and the authority of the issuance of the official document will be one authority, that is, the executive branch or the government, and this integration can ultimately lead to the issuance of only one document for all properties. The title of the official document, lead.

In this context, Noorbakhsh Riahi, an expert and researcher of legal science in the field of document and real estate registration, in an article published in the specialized scientific quarterly of legal encyclopedias, announced the abstraction of executive departments of document registration from the judiciary in line with the expediency of judicial independence and legal foundations. Is. According to this article, some of the duties of this organization, since it lacks a judicial nature and includes an executive nature, in order to protect the rights of individuals and ensure public order, should be assigned to the executive branch or the government.

In the end, these handovers can have positive effects such as facilitating and mandating the registration of transactions and real estate ownership, preventing disputes, allowing the owner to register property ownership without wasting time, as well as preventing secret transactions, fraud and fraud. In this article, the issue of Sharia validity of normal documents, along with the invalidity of these documents in other cases, has been raised and emphasized that the informal system has no enforcement guarantee and has brought the official registration to a dead end and has led to difficulties for the people. The result must be assigned. In fact, once and for all, the problem of one property with two documents should be resolved with measures, by abstracting the executive offices of registration from the judiciary and handing over each one to related agencies. The reviews of “Duniya Ekotsat” in this regard show that the main goal of this action should be the same thing, that is, to end the problem of one property with two documents.

“Hidden” but important line

But in addition to the three important goals that were mentioned, the approval of this resolution of the parliament can bring a great risk of conflict of interests on national and state lands. A group of legal experts and opponents of this transfer believe: in many cases, property disputes are related to lands that both the government and individuals jointly claim ownership of. If the government itself is the authority to issue an official document, in such cases there is a risk of violating people’s rights. In fact, if the government becomes the authority for issuing official documents, it can easily “change land use” to implement its goals. This is the goal that should not be on the government’s agenda even if this transfer is carried out and approved.

Source: World Economy