Hiayazah Research Paper Samples

The doctrine of Adverse Possession is an old and general principle common to most domestic legal systems. According to the doctrine, valid title of land can pass from the true owner of the land to another without compensation, if a person obtains and maintains “open and notorious” possession of the land for a specific period of time.
Adverse possession was first identified as a legal doctrine in the Roman Empire. As Roman law formed the basis for the legal systems of many of its former territories, in Europe, North Africa and the Middle East, adverse possession eventually adopted as a legal doctrine in many of those countries. Interestingly, adverse possession, which in Arabic, is known as “Hiayazah”, is quite a controversial subject in countries, such as Saudi Arabia, that follow an Islamic law tradition or that have adopted Sharia’a law as basis for their constitutions.
I will add the part were how Saudi Arabia uses sharia’a law.
But why is adverse possession controversial in Islamic law? To answer this question, it is important to recognize that under Sharia’a law, adverse possession as a concept, is quite different from how it is understood and applied in the civil and common law traditions of the West. According to Islamic law, ownership is a perpetual right which cannot be surrendered or acquired over time. Under Islamic law, a person can acquire title of land by sale, will, gift, preemption, grazing, and Hiayazah. Acquiring title by Hiayazah, however, occurs under a different set of conditions as that normally present for adverse possession to occur in a civil or common law country. Under Sharia’a law, Hiayazah is not considered a legally valid means of acquiring title when the possessed land is either: (1) privately owned, or (2) publicly owned by the government. In Sharia’s law, if title is to be gained under Hiayazah, the land can only be unowned land.
In other words, Sharia’a law allows for an understanding of adverse possession as a barrier to bringing a claim of title to land that one possesses. To be sure, under Hiayazah, simply possessing land that belongs to another private or public party, is not deemed a legitimate way to acquiring valid title. Therefore, adverse possession under civil and common law has a different application and understanding than under Sharia’a law.
Hiayazah may also be considered proof of ownership under Islam law. In such circumstances, the actual possessor of land is considered to be the true or bona fide owner until it can be proven otherwise. Such proof of ownership, however, does not provide the actual possessor with title to the land. Rather it simple is a means of preventing the true owner from taking his case to the court after all these years.
The following hypothetical provides and illustrative example of how adverse possession works in Saudi Arabia. How will a court rule when the true owner files a claim of ownership after a trespasser has obtained and maintains possession of the true owner’s land for 10 years? First, there must be proof that the trespasser had possession of the land for 10 years. An addition element of adverse possession in Saudi Arabian courts is the requirement that the trespasser’s possession of the land was “open and notorious” to the true owner, and the true owner took not actions to eject the trespasser from the property. If these basic elements are satisfied, the court next will inquire of the trespasser if the true owner’s claim of ownership is correct. If the trespasser denies the true owner’s right, the court will dismiss the case. On the other hand, if the trespasser admits to the true owner’s right of ownership; the real owner will maintain title over the land. However, if the trespasser has improved the land, such through the construction of buildings or the cultivation of farmlands, then the true owner has an obligation to either offer to pay for the improvements or allow the trespasser to remain in use of them. It is important to note, that the court will only return the actual land to the true owner. Any improvement made to the land remain the property of the trespasser after 10 years.
While, the Saudi legal system does not allow for a trespasser to use adverse possession as a means to acquire title, it nevertheless provides a number of ways to protect the rights of the possessor. Some Saudi judges and jurists consider these protections to be an indirect way of recognizing this doctrine as a way to acquire title. Hence, it remains a controversial legal concept. Conversely, other judges and jurists are of the opinion that adverse possession is the way to protect the trespasser from the true owner since the true owner is required to know of the trespassers possession over a period 10 years but yet does nothing to remove him from the land. Under these conditions, it provides protection to the trespassers right not to admit his ownership.
Here are ways to protect the current possessor. First, the current possessor of land prevents others from being exposed to his possession. If the true owner recognizes that the current possessor is on the land and takes action to eject or remove him; there are two condition for this protection: (1) the true owner has to exposure more than once and (2) it should be illegal. Second, recovery or the filing of a suit that allows the true owner to recover his property. Third, the filing of a suit to stop any new activities from the true owner against the trespasser.