Interests in Property

According to the Civil Code, proprietary interests can be divided into three different categories: ownership, hagh entefa (the personal right of enjoyment, such as leases and licences) and hagh ertfagh (rights to limited rights over another’s land such as easements).

Hagh entefa, which literally means the ‘right to use’, is almost the equivalent to leases, licences and profit-a-prendre. It also corresponds with the life estate freehold interests found under common law. Article 41 of the Civil Code states that:

A Life-Right [Life Estate] is a right of exploitation which has been estab­lished by means of a contract entered into by the owner in favour of someone, either for his own lifetime or for the lifetime of the user or for that of a third party.

The third proprietary interest, according to the Civil Code, is hagh ertfagh. Article 93 of the Civil Code outlines the proprietary interest where a person has an interest in the property of another person. This category of interest is similar to the common law proprietary interest known as an easement.

A privilege without profit, which the owner of one neighbouring tenement has of another... by which the servient owner [person who provides an easement to another] is obliged to suffer or not to do something on his own land, for the advantage of the dominant owner [person who benefits from the easement].

This type of interest under Iranian law only applies to non-removable properties, mainly land.^[622] This interest can be created by legislation, such as the case of public utility access, or through private contracts. It may also be created as a natural right with adjoining or neighbouring land and buildings, for example, when a building relies on the neighbouring building’s structure and foundations to remaining standing. The interest is divided into negative and positive hagh ertfagh. It even includes restrict­ive covenants, we well as negative easements.^[623] The hagh ertfagh interest can be proved by official documents (registered deeds). However, posses­sion and long use can be an evidence of the existence of this interest without official documents. Although, the long use presumption can be rebutted through the evidence of trespassing.^[624] Article 97 of the Civil Code states:

Whenever a person has for a long time had a water channel running through the house or property of another to his own property or, has had a right in his favour, the owner of that house or land shall not hinder the taking of water nor its passage through his property, and similarly with regard to rights such as holding rights in doors, openwork windows, aqueducts, irrigation channels and so on.

D.