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Tuesday, June 6, 2023
The stand of the Supreme Council of the Judicial Power (CSPJ) at the 28th edition of the Int’l Book and Publishing Fair in Rabat, organized under the High Patronage of HM King Mohammed VI, may Allah Bless Him, hosted a seminar on Legal Protection of Real Estate Property. The session has seen a significant presence and interaction.

The seminar was headed by Mr. Moncef Hassan, head of the Commercial Chamber of the Court of Cassation. He started by discussing the importance of the creation of the Commercial Chamber, which became operational on January 15, 2023. Mr. Moncef stressed the significance of this Chamber in the new judicial organization and pointed out the nature of cases brought before it, the prospects of its work, and the legal value expected of its efforts to solve the problems confronting real estate property.

For his part, Mr. Belhaj Hamid, Judge seconded with the Supreme Council of the Judicial Power, set out the Council’s strategy regarding the appropriation of property, and stressed the primacy of real estate property as a strategic production factor and a catalyst for sustainable development in all its dimensions. In fact, the legislatorwas keen to enforce several laws to protect the said property, whether upon trading or when facing assault, namely, Land Registration Dahir, Rights in Rem Code, Penal Code, Civil Law, and Criminal Law.

The speaker noted that since its establishment on April 06, 2017, the Council devoted its rapt attention to the topic of appropriation of property. The board attended the entirety of the meetings organized by the Committee assigned to this file, which was created following the royal letter sent to the Minister of Justice on December 30, 2016. The Council has also set up a unit headed by a judge and tasked with monitoring and following the process of clearing the appropriation of property backlog.

Along the same vein, Mr. Daoudi Younes, head of the Criminal Chamber at the Court of Appeals of Kenitra, underlined that the appropriation of property is a complex and intricate phenomenon in which several factors and causes come together, including what is exclusively economic and social, and what is legislative and judicial. To this end, eliminating this phenomenon is not an easy undertaking as the law cannot predict new situations as long as they continually evolve in light of the development of means used in forgery and fraud.

The speaker proceeded by saying that the Moroccan legislator, cognizant of the paramount importance of real estate in economic development and the sanctity of the right to property, has constitutionalized this right by virtue of Chapter 35 of the 2011 Constitution, which stipulates that the law guarantees the right to property. The legislator has also enacted legal texts that aim to regulate, protect, and secure real property.

Ms. El Kaaem Nadia, chair of a committee at the Real Estate Chamber of the Court of Cassation, gave a presentation on “Jurisprudence in Partition and Preemption Cases”. She set forth a number of rules that the Court of Cassation laid out when dealing with practical problems detected in this area, stressing that the jurisprudence of the Court of Cassation played a major role in preserving a social balance in order to achieve legal and real estate justice, for the benefit of the buyer in terms of their freedom of contract, and the intercessor who regulates this freedom.

On the topic of construction and land registration, Mr. Benyiich Mohammed, chair of a committee at the Real Estate Chamber of the Court of Cassation, brought into focus a range of principles in the construction and land registration field, indicating that construction law resorts to urbanism documents to address planning and construction issues. These documents convey the volition, choices, and area architecture of the legislator, as well as his philosophy regarding exploitation and investment. The speaker, therefore, affirmed that construction hinges on two means to meet these needs. The first mean is general and refers to the Urban Planning Orientation Plan and the second one is the Zoning Plan design which is an organizational urbanism document intended to maintain the orientations of the urban planning guideline.

Mr. Benyiich stated that urbanism documents are the legal framework and should not be violated. Every person who wishes to invest in their personal real estate must check that their project adheres to the guidelines of these documents, as they are legally binding on all persons in Moroccan law, whether private, public, physical, or moral persons.

For his part, Mr. Ennahari Jaouad, Counselor at the Court of Cassation, discussed in his intervention judicial trends in ethnic land, noting that the rules of many laws were inspired by the jurisprudence produced by the Court of Cassation in several fields, notably those concerning ethnic lands, and stressed on the importance of these lands given their association with development, social, and economic challenges.

The speaker moved on to explain that the surface area of ethnic lands constitutes a total of 12 million hectares, to which a large proportion of rural inhabitants belong, stressing that the most frequent problem that arises in this respect is that of proving the collective nature of the properties. Mr. Ennahari also presented a number of concrete examples of ethnic land collectivity cases handled by the Court of Cassation.

Mr. Ait Arajdal Samir, President of the Casablanca Court of First Instance, touched upon the subject of individual and collective rights in joint ownership, in which he explained the individual and collective rights in the context of co-ownership, which could result in delicate situations between the owner of the divided parts and the owners of the common parts. This instance prompted the legislator to intervene in order to guarantee a balance between individual and collective rights in this respect.

Mr. Ait Arajdal also stated that by virtue of his intervention, the legislator intends to guarantee the proper management of joint ownership, laying down a body of jurisprudence from the Court of Cassation on the role of justice in protecting joint ownership.

Likewise, the President of the Real Estate Chamber of Court of First Instance of Temara, Ms. Boutahar Noura, underlined that selling unfinished property is a way for low-income earners to acquire real estate assets, be it an apartment, professional premises, or business premises, depending on the needs of each individual. She added that from an economic point of view, this type of sale enables property developers to finance their real estate projects and obtain liquidity without recourse to bank loans.

Ms. Boutahar added that the Moroccan legislator has regulated the sale of unfinished property by resorting to a special arrangement, namely law No. 44.00 promulgated in 2002, which made substantial amendments to the provisions of article 618 of the D.O.C., in addition to the promulgation in 2016 of law No. 107.12, which amended and supplemented law no. 44.00, the subsequent application of which revealed gaps and shortcomings.

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