The Real Estate Licence in the English Law/ An Analytical Comparative Study with the Islamic Jurisprudence and the Iraqi Civil Law
Abstract
The real estate licence is considered as, a general rule, a personal right under the English Common law of customary origins, which is unwritten and based upon judicial precedents of the English courts. As well as the principles of equity. The licences are based on the occupation for acquiring the personal right, as it is the case with the occupation of the tenant, and the bailee. And it is not based upon the adverse possession for acquiring the real right. It is worth-bearing in mind that the licence is categorized into four main types: The bare licence, the contractual licence, the Licence Coupled with an Interest, and the estoppel licence. And it can be transferred into a real right, if connected with the constructive trust. And obliges the real estate purchaser. The Islamic jurisprudence in turn recognized permission acts, and called them beneficial rights, as opposed to beneficial property or ownership. Whereas the Iraqi civil law No. (40) of 1951, did not organize completely permission acts, in spite of mentioning them. The problem of the research lies in the shortage and insufficiency committed by the Iraqi legislator in dealing with the permission based upon the licence, particularly the permission of using the real estate. Therefore, the researcher recommends that the Iraqi legislator adopt the licence coupled with an Interest and the estoppel licence.
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