Dr Mahmoud A. Salameh
Assistant Professor of Civil Law
Faculty of Law, Arab American University
West Bank, Palestine

Abstract:

This study tackles to which extent the builder or planter on land owned by someone else could be an owner of which, in the event of using his/ her materials, based on “legitimate claim” provisions that the mejella has regulated according to Article 906. After the judiciary opinions’ display and observation, and where the Ottoman legislator did not address the study topic but in minor part of article 906, thus, this led to a controversial discussion, among jurisprudence and the judiciary, about the core of “legitimate claim”, its requirements and its objective scope. Given the lands in Palestine are divided into registered land, or unregistered lands, this has resulted the judiciary’s conflicting doctrines towards the application of “legitimate claim” provisions over registered lands.
Therefore, the study problem is incarnated in the demonstration of “legitimate claim” meaning and determination of its application conditions, then discussing reasons for its judiciary’s denial over registered lands. As for those judiciary rules applied to owned registered lands, the scope of this study is restricted just to “legitimate claim” concerning registered lands according to merely applicable legislations within the west bank, regardless of their sort.
This study uses an analytical and descriptive methodology and resorts to Palestinian and comparative judiciary rules. This study is divided into two chapters, the first addresses the concept of “legitimate claim” and its distinctive nature to other concepts and its application requirements. The second chapter stipulates the judiciary and jurisprudence’s perspective of “legitimate claim” application over registered lands through focusing on the rejecting decisions orientation, their justifications and the extent of their compatibleness within law rules.
This study has come out with results and recommendations, the most remarkable of which is the necessity of adopting the “subjective criterion” in identifying of “legitimate claim”, and inaccuracy of reasons that the orientation of judiciary has relied on in order to refusal of “legitimate claim” application over owned registered lands.
Keywords: ownership sources, legitimate claim, proper reason, connection to the property, and building or planting on someone else’s land.

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