A Comparative Study on the Nature of Registration and Means of Transferring Ownership of Immovable Property in Islamic Jurisprudence, Iranian Law, and U.S. Law

Abstract

In accordance with the recognition of international charters and most modern constitutions, the right to ownership and its transfer can be defined as one of the natural and fundamental human rights, granting citizens the right to own and dispose of property, as well as to transfer it, without conflict between their individual right to own property on one hand and the state's right to acquire ownership on the other. This issue gradually sets the groundwork for the transfer of ownership of immovable property. Therefore, the present article, employing a descriptive-analytical research method and reviewing legal documents, aims to address the question of what similarities and differences exist in the nature of the means of transferring ownership of immovable property in Islamic jurisprudence, Iranian law, and U.S. law. The findings of the research indicate that, firstly, there are significant similarities regarding the registration of transactions involving immovable property in Islamic jurisprudence, Iranian law, and U.S. law. These similarities can be viewed from two perspectives: on one hand, all three legal systems emphasize and focus on the registration of transactions, including those involving immovable property; on the other hand, sale is considered one of the means of transferring ownership of immovable property in all three systems. However, in Islamic law, the failure to document a transaction does not invalidate the legal action. Rather, in accordance with verse 282 of Surah Al-Baqarah, it can be proven through testimony and confession. Secondly, although Iranian law, following Imamiyyah jurisprudence, considers the conclusion of a sale contract as a means of transferring ownership of immovable property, various factors, including the wording of specific articles—particularly Article 48 of the Registration Act—have prevented the legislator's full intent from being realized. In practice, the transfer of real estate has become widespread through the use of informal documents known as "commitment letters" and "sale agreements" in real estate agencies.