ENSURING “STABILITY OF THE REAL ESTATE LEGAL SITUATION” IN THE IRANIAN LAND RECORDING SYSTEM

Nasrin Tabatabai Hesari, Hajar Azari, Mahmood Saber

Abstract


The topic of recording real estate transactions and the documentation of the rights of all parties is a controversial topic under the Iranian recording system. One of the functions of the recording system is “assuring security” regarding the stability of real estate property transactions, which can affect the rights of third parties as well. “Security” in transactions requires establishing priority for recorded transactions and observing rights concerning unrecorded ones. This means that the developed form of the recording system must move from “static security” to “dynamic security” in order to protect public interests instead of private ones. In reviewing the Iranian legal system, the bases of “Dynamic Security” can identified in various laws related to the recording of real estate transactions that legally recognize formal deeds and recorded rights. However, since these bases have not been theorized yet, there is not enough sanction to guarantee the enforcement of this theory. In addition, judicial procedure has issued a lot of sentences implying the acceptance of “Static Security”, so that private interests are considered much more important than public interests. The lack of any formal and legal “Dynamic Security” theory has even led legislators to adopt rules against this theory by granting the authority to judges to give effect to informal documents as well. All this has resulted in a lack of security and stability in the recording system, which has led to a lack of trust by all parties in trusting the information and the content of a registration book, because any kind of transaction can be nullified by a judicial decision. In applying a qualitative method and content analysis, it can be concluded that “Dynamic Security” can provide very useful tools for guaranteeing the security and stability of real estate transactions. Consequently, it is essential to theorize this security and consider it in the law and practical procedures relating to it.

Keywords


Land recording system, Dynamic theory, Static theory, Real estate transaction.

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DOI: https://doi.org/10.13165//j.icj.2017.12.006

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