Article 855
Subject to the preceding provisions, family joint ownership will be governed by the provisions of the law relating to joint property and to mandate.
Ownership of Storeys in Buildings
Article 856
In the absence of any provisions to the contrary in the title deeds, when the different storeys or various apartments of a building belong to different owners, such owners are considered co-owners of the ground and of the parts of the building intended for the common use of all, especially of the foundations, the main walls, the main entrances, yards, roofs, lifts, passages, corridors, the floor supports and pipes of all kinds with the exception of pipes inside the storeys or the apartments.
These parts of the building held in common cannot be divided; each of the owners has a share in these parts in proportion to the value of his share in the building. No owner can dispose of his share in the parts held in common independently of his share in the building.
The inner walls which separate two apartments belong as party property to the owners of these two apartments.
Article 857
Every owner may, with a view to enjoying his part of the building, utilize the parts held in common, in accordance with the use for which they are intended, provided he does not prevent the other owners exercising their rights.
No modification can be made to the parts held in common, even in the event of reconstruction, without the consent of all the owners, unless such modification, made by one of the owners, at his own cost, is of such a nature as to facilitate the use of the parts held in common, does not change the use to which they were intended and is not prejudicial to the other owners.
Article 858
Every owner must participate in the cost of the preservation, maintenance, management and reconstruction of the parts held in common. Subject to any agreement to the contrary, the share of every owner in these costs will be calculated in proportion to the value of his share in the building.
No owner can renounce his share in the parts held in common with a view to avoiding participation in the costs referred to above.
Article 859
The owner of a lower storey is bound to execute works and repairs necessary to prevent the higher storey from falling.
If he refuses to execute the necessary repairs, the judge may order the sale of the lower storey. In any case, the Judge des Referes may order the execution of urgent repairs.
Article 860
If the building falls down, the owner of the lower storey is bound to rebuild his storey, failing which, the judge may order the sale of the lower storey, unless the owner of the upper storey offers to rebuild the lower storey himself at the cost of the owner of the lower storey.
In this latter event, the owner of the upper storey may refuse to allow the owner of the lower storey to occupy or make use of his storey until he has repaid the amount of his debt. He may also obtain authority to let or to occupy the lower storey in repayment of the amount due to him.
Article 861
The owner of the upper storey shall not heighten the building in such a way as to injure the lower storey.
Syndicates of Owners of Storeys of a Single Building
Article 862
When a building, divided into storeys or apartments, belongs to several owners, such owners may form a syndicate amongst themselves.
A syndicate may also have for its object the construction or the acquisition of buildings with a view to allocating the ownership of parts of such buildings to members of the syndicate.
Article 863
A syndicate may, with the consent of all it members, establish rules with a view to assuring a better enjoyment and the good management of the building held in common.
Article 864
In the absence of such rules or if such rules do not contain provisions in respect of certain points, the right to manage the parts held in common belongs to the syndicate, whose decisions will be, in this respect, binding, provided that all the interested parties have been summoned to a meeting by registered letter and that the decisions have been taken by a majority of the owners, calculated on the basis of the value of their shares.
Article 865
The syndicate may, with the consent of the majority prescribed in the preceding article, take out collective insurances against risks to the building or to the co-owners jointly and may authorize, at the expense of the owners who so demand, all works or installations which increase the value of all or part of the building, upon the conditions and subject to such compensation and other obligations as may be laid down by the syndicate, in the interests of the co-owners.
Article 866
A representative shall be appointed by the majority of the owners, as provided for in Article 864, to carry out the decisions of the syndicate. If the required majority is not obtained, a representative of the Syndicate will be appointed, at the request of one of the co-owners and upon the other owners being called to give their views, by the President of the Court of First Instance within whose jurisdiction the building is situate. The representative of the Syndicate shall, if need be, upon his own initiative, take all necessary measures for the preservation, protection and maintenance of all parts held in common. He shall be entitled to call on any party concerned to perform these obligations. These provisions shall apply in the absence of any provision to the contrary in the rules of the Syndicate.
The representative of the Syndicate shall represent the Syndicate before the courts, even against the owners if need be.
Article 867
The remuneration of the representative of the Syndicate will be fixed in the decision or order appointing him.
The representative of the syndicate may be discharged by a decision taken by the majority of the co-owners, as laid down in Article 864, or by an order of the President of the Court of First Instance within whose jurisdiction the building is situate, after the co-owners have been summoned to be heard on the question of his discharge.
Article 868
If the building is destroyed by fire or otherwise, the co-owners are, subject to any agreement to the contrary, bound to conform to the decision of the syndicate as to its reconstruction taken by the majority, as provided in Article 864.
If the syndicate decides to reconstruct the building, any amount due as compensation on account of the destruction of the building shall, without prejudice to the rights of the registered creditors, be set aside for the costs of reconstruction.
Article 869
Any loan made by the syndicate to one of the co-owners, in order to assist him to carry out his obligations, will be secured by a privileged charge on his divided part as well as on his undivided share in the parts of the building held in common.
The rank of this privilege
Section II Acquisition of Ownership
1. Acquisition by Appropriation
The Appropriation of Movables without an Owner
Article 870
Whoever takes possession of a movable which has no owner, with the intention of its appropriation, acquires the ownership thereof.
Article 871
A movable is deemed to have no owner when its owner abandons possession of it with the intention of renouncing his ownership thereto.
Animals, other than domestic animals, are deemed to have no owner as long as they are at liberty. If one of such animals, after losing its liberty, regains its freedom, it becomes without an owner if the owner does not seek for it immediately or ceases to seek for it. An animal that has become tame and is accustomed to return to the same place becomes again without an owner if it loses this habit.
Article 872
Buried or hidden treasure to which no one can establish ownership belongs to the owner or the bare owner of the property on which it is discovered.
Treasure discovered on wakf property belongs to the founder of the wakf or to his heirs.
Article 873
Rights of fishing and hunting and rights to things found and to antiquities are governed by special regulations.
The Appropriation of Immovables which have no Owner
Article 874
Uncultivated land which has no owner is the property of the State.
The appropriation or the possession of uncultivated land can only be effected with the authority of the State in accordance with the regulations.
If, however, an Egyptian cultivates or plants uncultivated land or builds thereon, he becomes forthwith owner of the part cultivated, planted or built on, even without the authority of the State, but he loses his ownership by non-user for five consecutive years during the first fifteen years following his acquisition of ownership.
Acquisition by Inheritance and Winding up of an Estate
Article 875
The establishment of the heirs or their hereditary shares and of the devolution of the property of the estate on them is governed by Mohammedan Law and by the laws with regard to inheritance and estates.
The following provisions apply to the winding up of an estate.
The Appointment of an Administrator
Article 876
In the absence of the appointment of a testamentary executor by the deceased, the court may, at the request of an interested party, if it considers it necessary to do so, appoint as administrator of the estate a person chosen unanimously by the heirs. In the absence of such unanimity, the judge will, after having heard the heirs, choose an administrator, if possible from among the heirs.
Article 877
A person appointed administrator may decline to act or may, after having acted as administrator, renounce the appointment in accordance with the provisions of the mandate.
The judge may also, for adequate reasons, either at the request of any of the interested parties or at the request of the Ministere Public, or of his own initiative, discharge an administrator and replace him by another.
Article 878
The appointment of a testamentary executor by the deceased must be confirmed by the judge.
The rules applicable to an administrator of an estate apply equally to a testamentary executor.
Article 879
The greffier of the court must enter, day by day, the court orders as to the appointment of administrators and the confirmation of testamentary executors, in a public register, recording the names of the deceased person in accordance with the form prescribed for alphabetical indexes. He must enter in the margin of the register all orders of revocation and all renunciations.
The entry of the order as to the appointment of an administrator will, as regards third parties dealing with the heirs in connection with immovable property belonging to the estate, have the same effect as the entry provided for in Article 914.
Article 880
An administrator shall, upon his appointment, take possession of the property of the estate and proceed with the winding up of the estate under the control of the court. He may apply to the court for remuneration commensurate with the duties performed by him.
The estate shall bear the costs of the winding up. These costs will have a privilege in the same preferential rank as legal expenses.
Article 881
The court must, at the request of any interested party or of the Ministere Public, or on its own initiative, take, if need be urgent, necessary measures for the preservation of the property of the estate. The court may, in particular, order that the property be placed under seal and that cash, securities and articles of value be placed in deposit.
Article 882
The administrator must immediately pay, out of the assets of the estate, burial and funeral expenses in accordance with the social standing of the deceased. He must also obtain an order from the Juge de Service (Judge in Chambers) authorizing him to make, pending the final winding up, an adequate alimentary allowance to such heirs as were supported by the deceased and to deduct such payments from the share in the estate of each heir to whom such alimentary allowance is made.
Any dispute arising as regards such an allowance shall be settled by the Juge de Service.
Inventory of the Estate
Article 883
As from the date of the entry of the order appointing an administrator, the creditors of an estate can only take proceedings or continue proceedings already commenced in connection with the estate against the administrator.
Any distribution opened against the deceased before his death, in which the order of allotment has not become final, must, at the request of any interested party, be suspended until all the debts of the estate have been settled.
Article 884
No heir may dispose of estate assets, recover estate debts, or set off a personal debt against a debt of the estate until an inheritance certificate, provided for in Article 901, has been delivered to him.
Article 885
An administrator is bound, during the winding up, to take the necessary measures to preserve and administer the property of the estate. He must also represent the estate before the courts and proceed with the recovery of debts due to the estate.
An administrator is, even if he is not remunerated, responsible to the same extent as a paid mandatory. The judge may call on him to render an account of his administration at periodical intervals.
Article 886
An administrator must publish a notice calling on the creditors and debtors of the estate to submit particulars of their claims and of their debts within a delay of three months from the last publication of the notice.
This notice must be posted on the main door of the residence of the Omdah in the town or village in which the estate property is situate, or on the main door of the police station in the town where this property is situated, and on the notice board of the Summary Court within the jurisdiction of which the deceased was domiciled at the date of his death. The notice must also be published in a daily newspaper with a wide circulation.
Article 887
An administrator must, within four months from the date of his appointment, file with the registry of the court a statement of the assets and liabilities of the estate with an estimate of their value. He must also, within the same time, inform every interested party by registered letter of the filing of the statement.
An administrator may apply to the judge for an extension of time, if this extension is justified by circumstances.
Article 888
An administrator may employ, for the preparation of the inventory and for the estimation of the value of the property of the estate an expert or a person with the necessary special experience.
An administrator must record claims and debts disclosed by the papers of the deceased, shown in public registers or coming to his knowledge in any other way. The heirs must also advise the administrator of all debts and claims of the estate known to them.
Article 889
Any person, including an heir, who fraudulently appropriates a part of the assets of the estate, is liable to the penalties for misappropriation.
Article 890
Any dispute as to the accuracy of the inventory, particularly as regards the omission of assets, claims or debts of the estate, or as to the entry in the records, should be submitted to the court by petition at the request of any interested party within the thirty days following the notice of the filing of the inventory.
The court will investigate the dispute. If the court considers the claim to be a serious one, it will admit the claim by an order which is subject to recourse in accordance with the provisions of the Code of Procedure.
If the dispute has not already been submitted to a court of justice, the court will fix a delay within which the interested party should submit the claim to the competent court, which court will deal with the matter as one of urgency.
Discharge of the Debts of the Estate
Article 891
Upon the expiration of the delay fixed for the submission of disputes arising on the inventory, the administrator will proceed upon the authority of the court, with the payment of those debts of the estate which are uncontested. Debts which are contested will be settled after the final decision of the court on the litigation.
Article 892
In the event of the estate being insolvent or of the possibility of it being insolvent, the administrator must suspend the discharge of any debt, even uncontested, pending final decisions in respect of all disputes arising as to debts of the estate.
Article 893
The administrator will discharge the debts of the estate with funds derived from claims recovered, cash in hand, proceeds of the sale of securities at market prices, proceeds of the sale of movables and, if the funds so obtained are insufficient, with the proceeds of the sale of immovable property of the estate.
The sale of movable and immovable property of an estate will be made by public auction in the manner and subject to the delays laid down for forced sales, unless all the heirs agree the sale shall be carried out by negotiation or in any other manner. If the estate is insolvent, the approval of all the creditors is also necessary. The heirs are always entitled to take part in the auction.
Article 894
The court may, at the request of all heirs, pronounce the immediate exigibility of a debt not yet due for payment, and fix the amount payable to the creditor in accordance with the provisions of Article 544.
Article 895
If the heirs do not unanimously agree to demand the immediate exigibility of a debt not yet due for payment, the court will proceed with the distribution of the debts not yet due for payment and of the assets of the estate, so that each heir takes from such debts and assets a portion corresponding to the net value of his share in the inheritance.
The court will give each creditor of the estate an adequate guarantee on a movable or immovable property, reserving, however, to any creditor who had a special security that same security. When this is not possible, even by additional security given by the heirs on their own property, or by any other arrangement, the court will charge all the estate assets to provide such security.
In all these cases, if security has been given on an immovable property and has not already been published, such security must be published in accordance with the provisions laid down as to the publication of judgment charges on real property.
Article 896
Any heir may, after the distribution of the debts not yet due for payment, pay the amount allocated to him before the due date in conformity with Article 894.
Article 897
Creditors of the estate, whose debts have not been paid because they were not shown in the inventory and were not secured by a charge on the property of the estate, have no remedy against third parties who have acquired, in good faith, a real right on this property, but have a right of action against the heirs to the extent to which the heirs have benefited.
Article 898
An administrator shall, after discharge of the debts of the estate, proceed with the payment of the legacies and other charges.
Delivery and Division of the Property of the Estate
Article 899
The residue of the property of the estate, after settlement of the liabilities, devolves on the heirs in proportion to their shares in the inheritance.
Article 900
An administrator shall deliver to the heirs the property of the estate devolving on them.
The heirs may, upon the expiration of the time fixed for the submission of the disputes arising on the inventory, demand that all or part of the things or cash which are not required for the winding up of the estate be provisionally delivered to them, with or without security.
Article 901
The court will give to each heir who produces an Elam Charei, or any other ********************alent ******************************** as to the inheritance, a certificate establishing his rights in the inheritance, the extent of his share therein and the estate property devolving on him.
Article 902
An heir may call upon the administrator to deliver to him his share in the estate as a divided part, unless such an heir is obliged to remain an owner in common by reason of an agreement or a provision of the law.
Article 903
When a demand for division should be admitted, the administrator will proceed with the division amicably, but this division will only become final upon the unanimous approval of the heirs.
If the heirs do not unanimously approve the division, the administrator must bring an action for the division in accordance with the provisions of the law; the costs of this action will be charged to the estate and deducted from the hereditary shares of the co-sharers.
Article 904
The rules laid down for partition of property held in common, especially those as regards warranty against disturbances and eviction, lesion and the preferential rights of a partitioner, shall apply to the division of estates, as well as the following provisions.
Article 905
In the absence of an agreement between the heirs as to the division of family papers or articles having a sentimental value for the heirs owing to their relationship to the deceased, the court shall order either the sale of these articles or their al******************************** to one of the heirs, with or without deduction of their value from his share in the estate, taking into account both custom and the personal circumstances of the heirs.
Article 906
If there is, amongst the property of an estate, an agricultural, industrial or commercial enterprise constituting a distinct economic unity, it must be allotted as a whole to such one of the heirs who applies for it if he is the most capable of the heirs to carry on the enterprise. The price of such an enterprise will be fixed in accordance with its value and will be deducted from his share in the estate. If the heirs are all equally capable of carrying on the enterprise, it shall be allocated to the heir who offers the highest price, provided that this price shall not be less than the price for similar enterprises.
Article 907
If, at the time of division, a debt due to the estate is allocated to one of the heirs, the other heirs are not, in the absence of an agreement to the contrary, guarantors of the debtor, if he becomes insolvent subsequent to the division.
Article 908
A will dividing the property of the estate between the heirs of the testator and setting out the share of each heir or of certain of the heirs is valid. If the value of the share so given to one of them exceeds his hereditary share, the excess is deemed to be a legacy by will.
Article 909
A division made by disposition (mortis causa) may always be revoked. It becomes irrevocable on the death of the testator.
Article 910
If such a division does not include all the property of the deceased at the date of his death, that property which has not been included in the division devolves in common on the heirs in accordance with the rules as to inheritance.
Article 911
If one or more of the contingent heirs included in the division predecease the deceased, the divided part allotted to him or them devolves in common on the other heirs in accordance with the rules as to inheritance.
Article 912
The general rules as to division, with the exception of those relating to lesion, apply to the division made by disposition (mortis causa).
Article 913
If the debts of the estate are not included in the division, or if these debts are included and the creditors do not agree to the division, any heir may, if these debts are not settled in agreement with the creditors, call for a division of the estate in accordance with Article 895. In this case, account must be taken, as far as possible, of the division made by the deceased and the considerations which guided him as regards such division.
Rules Applicable to Estates that have not been Wound Up
Article 914
When an estate has not been wound up in accordance with the preceding provisions, the unsecured creditors of the estate may take action, in respect of their claims or their legacies, on the immovable property of the estate which has been alienated or which has been charged with real rights to the benefit of third parties, provided that they have recorded such claims in accordance with the provisions of the law.
3. Acquisition by Will
Article 915
Wills are governed by the rules of Mohammedan Law and by laws on Wills.
Article 916
Every legal disposition made by a person during an illness immediately preceding his death, with the object of making a gift, is deemed to be a testamentary disposition and must be governed by the rules applicable to wills, no matter what de************************ion has been given to such an act.
The heirs of the person who has made such a legal disposition are the persons on whom falls the onus of proving that it was made by the deceased during an illness immediately preceding his death. This proof may be tendered in any way and the date of the legal instrument establishing the disposition cannot be invoked against the heirs, unless it is an established date.
If the heirs establish that the legal disposition was made by the deceased during an illness immediately preceding his death, the act is deemed to be a gift, (i.e. a testamentary disposition), unless the beneficiary proves that the contrary was the case. The above provisions are subject to any special provisions to the contrary.
Article 917
In the absence of any evidence to the contrary, when a person disposes of a property in favor of one of his heirs, reserving at the same time in some manner the possession and the enjoyment of the property so disposed of during his lifetime, the disposition is deemed to be a testamentary disposition and must be governed by the rules applicable to wills.
4. Acquisition by Accession
The Right of Accession in Respect of Immovable Property
Article 918
Alluvium formed gradually and imperceptibly by the river belongs to the reparian owners.
Article 919
Land uncovered by the sea belongs to the State.
No one may encroach upon the seashore except for the purpose of restoring the boundaries of his property which has been covered by the sea.
Article 920
Owners of lands adjoining still waters, such as lakes and ponds, do not acquire ownership over land uncovered by the retreat of these waters, nor do they lose their ownership over land which such waters overflow.
Article 921
The ownership of land displaced or uncovered by the river and of islands formed in its channel, is regulated by special laws.
Article 922
All buildings, plantations and other works existing above or below the ground are deemed to have been carried out by the owner of the land at his own expense and belong to him.
It may be proved, however, that such works were made by a third party at his own expense, as it may be proved that the owner of the land has transferred the ownership of works already existing or the right to erect and own such works to a third party.
Article 923
Constructions, plantations and other works carried out with materials belonging to another, become the exclusive property of the owner of the land when the removal of these materials is not possible without seriously damaging the works, or even when it is possible to do so but proceedings to recover the property are not commenced within a year from the date on which the owner of the materials knew of their incorporation in the works.
When the owner of the land acquires the property of the materials, he must pay their value together with an indemnity, if indemnity is due. When, however, the owner of the materials recovers the materials, their removal must be affected at the cost of the owner of the land.
Article 924
When a third party caries out works with his own materials on land which he knows is not his property, without the consent of the owner of the land, the owner of the land may, within a year from the day on which he learns of the execution of the works, demand either their removal at the cost of the third party who erected them, together with an indemnity, if indemnity is due, or their retention against payment of their break-up value or of a sum equal to the increased value they have given to the land.
A third party who carried out the works may claim the right to remove them if he does not cause any damage to the land in so doing., unless the owner of the land chooses to keep the works in accordance with the provisions of the preceding article.
Article 925
If the third party who carried out the works mentioned in the preceding article honestly believed that he was entitled to do so, the owner of the land has not the right to demand their removal, but he may, at his option, and provided the third party does not claim their removal, pay the third party either the value of the materials and the cost of the work or a sum equal to the increased value that the works have given to the land.
If, however, the works are so extensive that the payment of the amount due in respect thereof is onerous for the owner of the land, he may claim the conveyance of the ownership of the land to the third party against payment of adequate compensation.
Article 926
If a third party carries out works with his own materials, with the permission of the owner of the land, the owner of the land cannot, in the absence of an agreement with regard to these works, demand their removal. The owner of the land must pay to the third party, if the third party does not himself ask for their removal, one of the two amounts laid down in the first paragraph of the preceding article.
Article 927
The provisions of Article 982 apply as regards payment of compensation referred to in the three preceding articles.
Article 928
If during the construction of a building on his own land, an owner encroaches in good faith on part of an adjoining land, the court may, within its discretion, compel the owner of the adjoining land to transfer to his neighbor the ownership of that part which is occupied by the building, against payment of adequate compensation.
Article 929
Light constructions, such as sheds, shops and ****************ters, erected on the land of another, which are not intended to be maintained permanently, shall be the property of the person who erected them.
Article 930
If a third party carries out works with materials belonging to another party, the owner of the materials cannot claim their restitution but he has a claim for compensation against the third party, and also against the owner of the land up to the amount remaining due by him in respect of the value of the works.
The Right of Accession in Respect of Movable Property
Article 931
When two movables belonging to two different owners become mingled in such a way that they cannot be separated without deterioration, the court, in the absence of any agreement between the two owners, shall decide the matter in accordance with the rules of equity, having regard to the damage already done, the circumstances and the good faith of each of the two parties.
5. Acquisition by Contract
Article 932
The ownership of movables and immovables and other real rights are transferred by contract, when the contract refers to an object belonging to the person disposing of it, in accordance with Article 204 and subject also to the following provisions.
Article 933
The ownership of a movable which is described only as regards its species is transferred only upon its identification in accordance with Article 205.
Article 934
Ownership and other real rights over immovable property are not transferred either between parties or as regards third parties unless the rules laid down in the law regulating the publication of real rights are observed.
The law regulating the publication of real rights above referred to shall indicate the acts, judgments and instruments which should be published, whether they have the effect of transferring the ownership or not, and shall determine the rules as regards such publication.