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Part Five of the series “Practical Guide to the Lebanese Code of Real Property”, covering Articles 220 to 227, 238 to 254, and 255 to 266 of Decree No. 3339 of 12 November 1930 — three modes of acquisition of real rights on immovables operating outside the general rule that inscription at the Land Registry is the mode of acquisition: the promise of sale and the faculty of option, the right of pre-emption with its three statutory categories and short limitation periods, and acquisitive prescription with its four immunised categories after the 2004 reform.

Arabic original: الوعد بالبيع وحقّ الشفعة ومرور الزمن المُكسِب في القانون اللبناني — الجزء الخامس من الدليل العملي لقانون الملكية العقارية.

French version: La promesse de vente, le droit de préemption et la prescription acquisitive en droit libanais — Cinquième partie du Guide pratique du droit de la propriété foncière.

Introduction

In Part Four of this series we set out Book V of the Lebanese Code of Real Property — Decree No. 3339 of 12 November 1930, hereafter the CRP — covering the real-property privileges, the mortgage, and the forced sale. The present Part moves to later Books of the same Decree, united by a single thematic line: the alternative modes of acquisition of real rights on immovables, that is, those which depart from the general rule of Article 204.

Article 204 of the CRP enunciates the central rule of the Lebanese land system: real rights are acquired and transmitted by their inscription at the Land Registry. The rule does not exhaust the modes of acquisition. The CRP recognises other ways of obtaining the right of inscription itself, the inscription operating merely as a registration of an entitlement already constituted on the satisfaction of substantive or procedural conditions. Article 228 enumerates six modes of acquiring the right of inscription: succession, donation between the living and legacy, occupancy, pre-emption, prescription, and the effects of contracts. To these six is added the promise of sale — which, though not enumerated at Article 228, gives rise under Article 221 to a real right protected by provisional inscription and which converts into ownership on the exercise of the option.

Three mechanisms are addressed in this Part, selected for their centrality to ordinary Lebanese real-property litigation: the promise of sale, the right of pre-emption, and acquisitive prescription. They are here treated autonomously and in coordination, after passing references in the earlier Parts to the vente à réméré (Part Three) and to the mortgage on an immovable subject to a promise of sale (Part Four).

A note for the common-law reader on the Lebanese right of pre-emption. The institution treated at Articles 238 to 254 has no exact common-law analogue and should not be assimilated to the English right of first refusal. The Lebanese right is a post-sale statutory unwinding remedy: it operates after the sale has been concluded and inscribed, by allowing the pre-emptor to evict the buyer from the contract and substitute himself in the buyer’s place on identical terms. The common-law right of first refusal is a pre-contractual privilege binding the owner to offer the property to the holder before selling to a third party. The two institutions diverge in source (statute versus contract), in timing (post-sale versus pre-sale), and in remedy (eviction of a completed inscription versus injunction or damages for breach of contract). The English term “pre-emption” is the proximate translation, but the structural mechanics are those of a civil-law retrait — a right of retraction operating retrospectively on a completed transaction.

Three legislative strata postdate the 1930 drafting and must be flagged at the outset.

• Law of 5 February 1948 — full overhaul of Chapter V of Book IX (pre-emption, Articles 238 to 254). The texts reproduced below reflect the drafting issued from that overhaul.
• Law No. 461 of 31 August 1995 — restructuring of the categories of pre-emptors at Article 239 (definitive abolition of the pre-emption of the adjoining neighbour), pure-and-simple abrogation of Article 241, and adjunction to Article 249 of a transitional regime authorising, for actions pending at the date of entry into force of the law, a supplementary indemnity not exceeding fifteen per cent of the value of the pre-empted immovable.
• Law No. 583 of 23 April 2004 — abrogation of the original text of Article 255 and substitution of a new text enumerating four categories of real-property rights immunised against acquisitive prescription, and imposing on the land courts an ex officio joinder of the Directorate-General of Real-Property Affairs and the concerned municipalities in any action or demand founded on possession.

Scope of this Part: provisions of Decree No. 3339, allocated as follows:

• Articles 204 and 205 (general framework): the rule of inscription as the mode of acquisition, and the renvoi to the effects of inscriptions at Article 11 of Decree No. 188 of 15 March 1926 on the Land Registry (which forms the substance of Part Six of this series);
• Book VIII (Articles 220 to 227): the promise of sale and the faculty of option;
• Chapter V of Book IX (Articles 238 to 254, with Article 241 abrogated): the right of pre-emption, its holders, its time limits, and the indemnity owed to the pre-empted purchaser;
• Chapter VI of Book IX (Articles 255 to 266): acquisitive prescription of real-property rights, its conditions, its durations, and its causes of suspension and interruption.

I. The General Framework: Inscription as the Mode of Acquisition

Article 204 of the CRP enunciates the founding rule: real rights are acquired and transmitted by their inscription at the Land Registry. The text adds two structural nuances. Ownership and the tasarrouf — the right of disposition over amirié lands set out in Part One — are also acquired by accession under Chapter II of the same Book (Articles 206 to 219, a mode of acquisition by natural or artificial adjunction outside the present Part). Three hypotheses depart from the principle that inscription is the moment of acquisition: the heir, the recipient of an expropriation, and the recipient of a transferring judgment are owners before inscription, but the acquisition produces effect against third parties only as from the inscription (Article 204).

The distinction has tangible consequences. The heir is owner from the opening of the succession but cannot dispose of the immovable to third parties until inscription. The recipient of a forced sale becomes owner from the decision of adjudication (Part Four, Section VIII), but effective disposition against third parties remains conditional on inscription.

Article 205 renders the effects of inscriptions to Article 11 of Decree No. 188 of 15 March 1926 on the Land Registry. The renvoi is structurally decisive: the rules constituting an inscription, its effects against third parties, and the rules of chronological priority among inscriptions are not in Decree 3339 but in Decree 188, which forms with Decrees 186 and 189 the complete procedural triptych of the Lebanese land system. This legislative intertwining — Decree 3339 (substantive), Decree 186 (delimitation and registration works), Decree 188 (Land Registry), Decree 189 (technical implementation) — surfaces repeatedly in the texts commented below.

Article 228 enumerates six modes of acquiring the right of inscription at the Land Registry: succession, donation between the living and legacy, occupancy, pre-emption, prescription, and the effects of contracts. The first four modes form the subject of autonomous Chapters of Book IX, where they operate as mechanisms generating property independently of any prior contract of sale inscribed between promissor and beneficiary. Therein lies the practical originality of this Part: three mechanisms of acquisition of real rights which do not depend on a sale contract inscribed between the parties, but on a promise antecedent to the sale, on a retrait of the immovable sold, or on a prolonged possession.

II. The Promise of Sale and the Faculty of Option

The promise of sale is an institution familiar to the general civil law: the Lebanese Code of Obligations and Contracts, hereafter the COC, regulates it at Articles 493 to 498. Article 498 of the COC provides expressly that “the promise of sale, as regards immovable property, is governed by the real-property laws in force”. Decree 3339 thus stands as the lex specialis governing the promise of sale of an immovable, and it prevails over the general rules of the COC wherever it contains a provision of its own.

Definition and conditions of validity

Article 220 defines the promise of sale as an agreement by which one person undertakes to sell a thing to another person as soon as that other person — who does not undertake to buy — declares that he has decided to acquire the thing promised. Three traits characterise the institution.

It is, first, a unilaterally binding contract. The promissor alone is bound; the beneficiary remains free to lift the option or to abstain. The asymmetry founds the whole regime — the provisional inscription for the beneficiary, the prohibition on disposition lying on the promissor alone, the time limits imposed on the beneficiary alone.

Three cumulative elements are required on pain of nullity. The agreement must bear simultaneously on the thing (the immovable promised), on the price, and on the delay within which the beneficiary may decide to acquire. The absence of any one of the three elements voids the promise (Article 220).

The option delay may not exceed fifteen years. If the parties stipulate a longer delay, the promise remains valid but produces effect only for fifteen years. This imperative ceiling belongs to public order in matters of land: it ensures that no immovable remains indefinitely encumbered by an option pressing on the powers of disposition of the proprietor (Article 220).

Article 220 also permits the promise to be granted to a determined person or drawn “to order” — that is, transmissible by endorsement of the holder to a third party. The endorsement is null if it does not bear the date written out in letters, the signature of the cedent, and the authentication of the signature by a notary. The drawing of a promise “to bearer”, by contrast, is prohibited ipso jure.

The real right born of the promise

Article 221 introduces a juridical qualification of singular reach: from the promise of sale of an immovable there is born a real right, submitted, in that quality, to all the rules applicable to real rights.

The qualification is structurally decisive. The promise is not a mere personal obligation weighing on the promissor; it engenders, on the formation of the agreement, a real right. The consequence is the application of the rules of land publicity and inscription, and notably of Article 10 of Decree No. 188 on the transmission of real rights, in particular for the endorsement of promises drawn “to order”. It is settled doctrine that this real-right character subjects the promise to the rules of inscription and explains the protective mechanisms put in place by the following articles — the prohibition on disposition lying on the promissor, the provisional inscription, the real subrogation in case of concurrent mortgage.

Prohibition on acts of disposition and the exception for the mortgage

The general rule (Article 222). The promise of sale prohibits the promissor, during the option delay, from selling the immovable or from constituting any real right over it — save for the mortgage. The legislative carve-out is precise: no new servitude, no usufruct, no long-term lease, no other real right may be constituted during the delay; but the real-property mortgage — accessory real security which does not dispossess the promissor (Part Four) — remains permitted.

The exception and its mechanism (Article 223). The promissor may constitute a mortgage during the same period, but the mortgages thus consented may not stand obstacle to the rights of the beneficiary. If the beneficiary lifts the option, the price of sale is substituted really to the mortgaged immovable: the rights of the mortgage creditors transfer onto the price, in the order established by Articles 16 and 17 of Decree No. 1329 of 20 March 1922. The acquirer-beneficiary thus finds, at the lifting of the option, an immovable freed of the mortgage, the rights of the mortgage creditor having transferred onto the price paid. This is the technical meaning of real subrogation: not a subrogation of persons, but a transfer onto the asset.

Provisional inscription and mandatory mentions

Article 224 makes the opposability of the promise to third parties of good faith subordinate to its provisional inscription at the Land Registry, in accordance with Article 25 of Decree No. 188. The text further provides that the provisional inscription is null if it does not indicate:

• the price agreed;
• the duration (the option delay);
• the name and address of the beneficiary;
• where applicable, the mention “to order” signalling the transmissibility by endorsement.

The omission of any one of these four mentions voids the provisional inscription and, with it, collapses the protection of the beneficiary against good-faith subsequent acquirers. The provisional inscription is not therefore an accessory formality but the very condition of opposability of the promise to third parties.

It is settled doctrine that the provisional inscription carries a probative force which makes it opposable to third parties as to the facts and rights set out in it, and that it fixes the rank of inscription as from its date. If a title of property is presented for inscription, remains uninscribed by reason of an obstacle, then a provisional inscription is entered on the folio of the immovable, and the obstacle being lifted the title is then definitively inscribed, the date of the title of property retroacts to the date of the provisional inscription.

The mortgage consented between provisional inscription and lifting of the option

Article 225 settles the intermediate hypothesis: where a mortgage is constituted between the provisional inscription of the promise and the lifting of the option, the payment of the price by the acquirer is valid only on the condition that it be effected into the hands of the notary, who ensures its distribution under Article 223 and the other provisions in force.

The rule is prophylactic. The acquirer-beneficiary cannot pay the price directly to the vendor-promissor where a mortgage has been consented between the provisional inscription and the lifting of the option: the mortgage is entitled to real subrogation onto the price, and this subrogation can be realised only if the price transits through the notary, who distributes it according to the rank of the mortgages. Any direct payment exposes the acquirer to liability towards the mortgage creditor.

Safeguard procedure where the vendor refuses

Articles 226 and 227 organise the procedure that the acquirer-beneficiary must follow where the vendor-promissor, during the option delay, refuses to comply with the call to conclude and inscribe the final deed of sale. Article 226 imposes a two-step demarche. The acquirer must, on the one hand, declare in writing, before the expiry of the option delay, his decision to acquire — addressed both to the vendor and to the head of the real-property bureau. He must, on the other hand, commence, within the fifteen days following the decision to acquire, an action seeking judgment of definitive transfer, the action being brought against the vendor and the mise en cause of the head of the real-property bureau being obligatory.

Article 227 provides that the head of the real-property bureau effects the definitive transfer at the acquirer’s request as soon as the judgment ordering this transfer has acquired the force of res judicata — a final judgment, no longer susceptible of ordinary or extraordinary recourse.

Three practical observations follow. The written declaration before the expiry of the delay must reach the vendor and the head of the real-property bureau simultaneously; the omission of one notification renders the demarche insufficient to preserve the effect of the provisional inscription. The fifteen-day delay to commence the action runs from the decision to acquire — that is, from the date of the written declaration — and not from the expiry of the option delay; failure to commence the action within this delay extinguishes the provisional inscription and restores to the promissor full liberty of disposition against good-faith third parties. The mise en cause of the head of the real-property bureau is a formal imperative: its omission renders the judgment unusable, the head of the real-property bureau being unable to proceed to the transfer without having been a party to the proceedings.

III. The Right of Pre-emption

The right of pre-emption is one of the modes enumerated at Article 228 for acquiring the right of inscription at the Land Registry. The Law of 5 February 1948 fully overhauled the chapter. Law No. 461 of 31 August 1995 then introduced two substantive reforms: the restructuring of the categories of pre-emptors (definitive abolition of the pre-emption of the adjoining neighbour) and the institution of a transitional indemnity regime for actions pending at its date of entry into force. The texts commented below reflect the current drafting after these two interventions.

Definition and scope of application

Article 238 defines pre-emption as the right that permits its holder to evict the buyer of an immovable from the contract, in the circumstances and on the conditions provided for in the following articles. The right of pre-emption applies as well to mulk immovables (in private full ownership) as to amirié immovables (under the regime of tasarrouf). By contrast, the rights of rahn and tabou provided for in the Ottoman land laws remain abrogated — the heritage of a legislative break consummated by Decree 3339 itself in 1930.

Three traits structure the institution. First, the pre-emptor exercises a power of retrait: he intervenes after the sale, not before. Pre-emption does not stand obstacle to the sale; it deploys after the sale’s conclusion to substitute the pre-emptor to the buyer in the contract itself. Second, the field of application is narrow and limitative: pre-emption is restricted to the cases enumerated by the following articles. It is settled doctrine that the texts on pre-emption, as an exception to the general rule of free disposition of property, are of strict interpretation and lend themselves to no extension. Third, the break with Ottoman law is consummated: the former rights of preference and tabou are expressly abrogated.

The three categories of pre-emptors

Article 239, in its drafting issued from Law No. 461 of 31 August 1995, restricts the right of pre-emption to three exclusive categories:

• The nude-property owner, where the usufruct is sold — whether the sale bears on the whole of the usufruct or on a fraction;
• The co-proprietor in indivision, where one or more quotas in the co-owned immovable are sold to a person extraneous to the indivision;
• The usufructuary, where the nude property is sold — whether the sale bears on the whole or on a fraction.

Any other right of pre-emption arisen before the entry into force of the 1995 Law and not yet exercised is extinguished. The earlier drafting had opened pre-emption to the adjoining neighbour and to other categories linked to easements; all these categories have been suppressed definitively. The same Law of 1995 abrogated Article 241 pure and simple.

It is settled doctrine that pre-emption between co-proprietors in indivision opens only on the sale of a quota to a person extraneous to the indivision; the sale of a quota from one co-proprietor to another co-proprietor of the same co-owned immovable gives rise to no pre-emption. This precision is central in modern litigation between heirs co-owners of family immovables.

Concurrence between pre-emptors

Article 240 organises the concurrence between several pre-emptors. Where the pre-emptors belong to different categories, priority follows the order set out at Article 239: the nude-property owner prevails over the co-proprietor in indivision, who in turn prevails over the usufructuary. Where they belong to one and the same category, the right of each is exercised in proportion to his quota. If one or several of them renounce their right, the others exercise the right in proportion to their respective quotas.

Anteriority of title, devolution to heirs, incessibility

Article 242 imposes an express temporal condition: the right of pre-emption belongs to the persons enumerated at Article 239 whose title of acquisition precedes the title of acquisition of the buyer. A person who has acquired his quota in indivision after the disposition he claims to pre-empt is therefore not admissible to exercise the right. Anteriority is assessed at the date of inscription at the Land Registry, and not at the date of the act or of the daily journal. It is settled doctrine that the register relevant for computing anteriority is the ownership ledger (the folio of the immovable), and not any annex register of the Land Registry such as the daily journal.

Article 243 adds two complementary rules. On the death of the holder, the right of pre-emption transmits to his heirs. It may not, however, be ceded to a third party. The right of pre-emption transmits by succession; it neither sells nor cedes between living persons.

Against whom pre-emption is exercised and the family exclusions

Article 244 provides that pre-emption is exercised only against the buyer or against the donee for consideration. In the latter case, the right of pre-emption remains exposed to the same causes of nullity, annulment, and revocation that affect the donation itself.

The text then closes the path of pre-emption in three hypotheses in which it is not receivable:

• Immovable exchange: the crossed sale of two immovables between two parties opens no right of pre-emption to any third person extraneous to the contract;
• Sale between spouses: pre-emption is excluded so as to shield the marital relation from any intrusion;
• Sale between ascendants and descendants, or between siblings: pre-emption is excluded so as to shield direct family ties.

It is apparently possible for the proprietor to circumvent the right of pre-emption by disguising the sale as a gratuitous donation, or by realising it within the immediate family. The circumvention is not, however, without counterweight. It is settled doctrine that the simulation of a donation disguising a sale is provable by all means; as soon as the simulation is established, pre-emption reopens. Where the donation is for consideration, pre-emption is in any event expressly admitted by Article 244 itself.

The indivisibility of the right of pre-emption

Article 245 enunciates the principle: the right of pre-emption is indivisible; it may be neither exercised nor renounced save in its entirety.

Three practical consequences follow. The pre-emptor cannot retrait a fraction only of the immovable sold and leave the remainder to the buyer. In case of plurality of pre-emptors of the same category, where one or several of them abandon their right, the others must demand and exercise pre-emption in its entirety (with no possibility of contenting themselves with a fraction). A single tempering is admitted where there is a plurality of buyers: the pre-emptor may then take the share of one only of the buyers. This exception stems from the fact that the plurality on the buyer’s side engenders several juridically distinct contracts from the standpoint of the obligational ties, even though they are gathered in a single deed of sale.

Causes of extinction of the right of pre-emption

Article 246 enumerates four causes of extinction of the right of pre-emption:

1. Non-exercise during the legal delay set by Articles 247 and 248 below;
2. Express written renunciation before the inscription of the sale, in an act of authenticated date, including the name of the buyer, the price, and the conditions, and whose date does not exceed six months before the inscription;
3. Procedural participation in the act: where the pre-emptor was the mandatary of the seller in the act of sale, or a witness to the contract and signed without reservation;
4. Renunciation after the inscription, express or tacit. This renunciation is, however, no longer admissible after the commencement of the action for pre-emption save with the buyer’s consent.

The four causes are central to the defence of the pre-empted purchaser: contention frequently bears on the pre-emptor’s role as witness or mandatary, or on the demonstration of a tacit renunciation by a determined conduct (for example, participation in the management of the immovable alongside the buyer).

The time limits for the exercise of pre-emption

The regime of time limits is dual. It varies according as the buyer has or has not served notice of the sale on the pre-emptor.

(a) The ten-day delay after notification (Article 247). After the inscription of the contract, the buyer may inform the pre-emptor of the inscription, through a notary for those resident in Lebanon, and in accordance with Article 362 of the Lebanese Code of Civil Procedure for those resident abroad. The notification must indicate the immovable sold and its characteristics, the date of inscription, the names and domiciles of the contracting parties, the price and its accessories, and the conditions of the contract. The pre-emptor must claim his right within the ten days following the notification — the delay being augmented by the delay of distance — on pain of forfeiture.

(b) The one-year delay in the absence of notification (Article 248). In the absence of notification, the right of pre-emption extinguishes at the end of one year from the date of inscription of the sale at the Land Registry. This delay runs against the incapable and the absent — a point of significant divergence from the general-law prescription regime of Article 266 (analysed in Section IV below), which suspends the running of the period for the benefit of these two categories.

Article 248 specifies expressly that these two delays are interrupted only by the commencement of an action for pre-emption before the court of the situs of the immovable, having jurisdiction by reference to the price set out in the act. No written correspondence between the pre-emptor and the buyer has an interruptive effect. Only the complete and regular commencement of the procedural action within the delay preserves the right.

The integral indemnity of the pre-empted purchaser

Article 249 subordinates the exercise of the right of pre-emption to a complete indemnification of the buyer. The indemnity comprises three components:

1. The price of the sale, which must be effectively offered and consigned at the latest on the day the action for pre-emption is commenced — unless the inscribed contract stipulates payment by deferred term. The offer and the effective consignation are made into the treasury of the court having jurisdiction over the pre-emption action;
2. The expenses of the act, comprising the official inscription duties and the brokerage commission, the latter not exceeding the legal tariff;
3. The indemnity for amelioration brought to the immovable by the act of the buyer — it being understood that the purely economic amelioration resulting from price fluctuations does not enter into account.

It is settled doctrine that the effective offer and consignation of the price on the day of commencement of the action constitute an essential condition of receivability of the pre-emption action. Failure to consign effectively entails the rejection of the action. No verbal offer or written undertaking of payment supplies for the effective consignation.

The transitional regime after the 1995 Law. For actions pending at the date of entry into force of Law No. 461 of 31 August 1995, the legislator introduced an additional mechanism: where the court finds that the right of pre-emption rests on a valid juridical cause, it pronounces in favour of the pre-empted purchaser the indemnity of the original Article 249, and it may also allow him a supplementary indemnity not exceeding fifteen per cent of the value of the pre-empted immovable as assessed by the court at the date of entry into force of the Law. The pre-emptor may obtain settlement of the supplementary indemnity by instalments under Article 300 of the COC, the last instalment falling due at the latest one year after the judgment. The transitional mechanism does not apply to actions that have been the object of final and irrevocable decisions, nor to actions in pre-emption commenced after the entry into force of the 1995 Law, and the supplementary indemnity is in any event conditioned on the consecration of pre-emption on the merits.

Subsequent transfer, dispute on the price, and modes of establishment

Subsequent transfer (Article 250). If the pre-empted immovable is transferred to a third party by inscription at the Land Registry before the commencement of the action, pre-emption may no longer be exercised save against the second buyer, and on the conditions on which he acquired. The rule prevents the pre-emptor from delaying the action until the transfer to a third proprietor; the second buyer is preserved in the conditions on which he acquired.

Dispute on the price (Article 251). Where a dispute arises on the amount of the price between buyer and pre-emptor, the court determines the real price independently of the value of the immovable. The buyer is not admissible to contend that the real price exceeds the price set out in the inscribed contract. The rule protects the pre-emptor against parallel agreements between vendor and buyer tending fictively to inflate the declared price so as to dissuade the assertion of pre-emption.

Modes of establishment (Article 252). The right of pre-emption is established, and the pre-emptor acquires the right of inscription, by one of two routes:

• Voluntary delivery of the pre-empted immovable by the buyer, after payment of the price and accessories set out at Article 249;
• Judgment rendered in favour of the pre-emptor.

The effects of pre-emption are the effects of the sale

Article 253 enunciates the principle: the pre-emptor is deemed to have bought from the buyer, and pre-emption produces between them the effects of the sale itself.

The qualification is precise. Pre-emption is not an autonomous sale: it is a subrogation of the pre-emptor to the buyer in the initial contract with the vendor. Three practical consequences follow. The pre-emptor enjoys all the warranties attached to the sale (warranty against eviction, warranty for latent defects, and so on). He does not benefit, by contrast, from the term granted in the contract to the buyer for the payment of the price, unless the court deems it appropriate to allow it to him against such securities as it judges necessary. Save for the contractual term, the court may not grant the pre-emptor any delay for payment.

The exclusions: waqf and public auctions

Article 254 sets out two exclusions: there is no pre-emption to the profit of the waqf, nor in the sale by public auction by way of the administration or the judiciary.

The exclusion of the waqf — the Islamic charitable or family trust set out in Part One — stems from the nature of the institution as a religious and social affectation that escapes the mechanics of the land market; the administrator of a waqf may not therefore exercise pre-emption in the name of the waqf. The exclusion of administrative or judicial public auctions covers the forced sales effected in the framework of the forced sale (set out in Part Four, Section VIII) and administrative sales. The logic is twofold: to shield the mechanics of forced sales from any disturbance, and to safeguard the stability of the priorities fixed in the distribution of the price.

IV. Acquisitive Prescription of Real-Property Rights

Acquisitive prescription — tamalluk bi-waḍʿ al-yad (acquisition by possession) in the Lebanese doctrinal vocabulary — is the mechanism by which the possessor acquires a real right on a non-inscribed immovable, on condition that possession is prolonged for a determined period. The regime is distinct from the extinctive prescription of obligations at Articles 349 to 360 of the COC (which extinguishes actions arising from obligations by non-use). A note for the common-law reader: the UK “limitation of actions” under the Limitation Act 1980, by which a possessor in adverse possession may bar the true owner’s recovery, covers a function analogous to the Lebanese regime, but the civil-law construct is affirmative: it confers a positive title on the possessor, not merely a bar on the owner’s action.

The four categories immunised against acquisitive prescription

Law No. 583 of 23 April 2004 abrogated the original text of Article 255 (which restricted immunity to two categories — rights inscribed at the Land Registry and assets administered by the Domains service) and substituted a text enumerating four categories. Prescription does not run on the following real-property rights, and their ownership cannot be acquired by possession:

1. The rights inscribed at the Land Registry;
2. The assets belonging to the State under Article 2 of Decree No. 275 of 25 May 1926, whether they have undergone the delimitation and registration works or have not yet been subjected to those operations;
3. The private domanial property of the municipalities;
4. The communal lands owned by the villages in collective ownership.

The text adds a procedural obligation on the courts seized of real-property actions, including the land judges: to summon ex officio the Directorate-General of Real-Property Affairs — Service of the Private Domanial Real-Property — and the concerned municipalities, in any action or demand seeking to establish a right of ownership founded on possession, and to do so before any decision on the merits.

Three practical consequences structure the regime. The inscribed immovable is definitively immunised: no possessor, whatever the duration of his possession, can acquire ownership of a definitively inscribed immovable. The rule is the keystone of the Lebanese land system and distinguishes it from systems in which inscribed property remains exposed to long-running prescription. Acquisitive prescription therefore operates only in the residual perimeter of lands not yet definitively inscribed, in particular in regions that have not undergone the delimitation and registration operations under Decree No. 186 (Part Seven of this series). The ex officio joinder of the public collectivities constitutes an additional procedural rampart against simulated actions seeking to appropriate public or municipal assets.

Extension of the immunity to assets affected to public use

Article 256 provides that no right of proof is acquired by prescription on the immovables matrouké, muhamiyé, and murfaka. The extension completes category 2 of Article 255 by covering three sub-categories of the public domain: matrouké assets (left to common use, such as pastures), muhamiyé assets (natural reserves), and murfaka assets (assets attached to a public service).

Durations and conditions of useful possession

Article 257 enunciates the central rule of durations: the right of inscription at the Land Registry is acquired, as regards immovables and rights not inscribed, by peaceful, public, and continuous possession for five years, by the person himself or by another person acting on his account, on condition that the possessor disposes of a just title; failing a just title, the duration is fifteen years.

The text founds a dual regime of durations, varying according as the possessor disposes or does not dispose of a just title:

• With just title: five years;
• Without just title: fifteen years.

The just title. A just title is a title translative of property, apparently regular, emanating from a person other than the true owner. It may consist, for example, of a sale concluded with a person whom the acquirer believed to be the owner, or of a donation received from a person without quality — on condition that the title bears a regular juridical form. Mere claim of ownership does not suffice; a real title must be present on which the possessor can rely. It is settled doctrine that the decision of adjudication issued from a forced sale does not constitute a just title for the purposes of acquisitive prescription unless it bears on an immovable that was effectively inscribed in the patrimony of the debtor pursued (see, in convergent sense, Part Four, Section VIII).

The conditions of possession. Three cumulative conditions are expressly required by Article 257:

• Peaceful: possession must rest neither on violence nor on coercion;
• Public: possession must be ostensible to those whom the asset concerns, and not clandestine vis-à-vis the true owner;
• Continuous: possession must be uninterrupted throughout the required duration.

Possession may be exercised personally or through a third party acting on the account of the possessor. Article 258 adds three further precisions. Continuity is established from the moment possession manifests itself by the regular and customary exercise of the possessed right; it does not require permanent physical presence on the immovable. Tacking is permitted: a possessor invoking prescription may rely on the possession of the person from whom the immovable devolved to him, on condition of a juridical link between them (succession, sale, donation, legacy). Excluded categories: the farmer, the user, the depositary, the borrower, and their heirs may not invoke prescription; these detainers hold the immovable in recognition of the ownership of another, and their possession therefore does not turn in their favour, whatever the duration elapsed.

The presumption of continuity

Article 259 establishes a simple rebuttable presumption. Possession of which existence is established at a determined moment, joined to actual current possession, raises the presumption that possession subsisted in the interval, save proof to the contrary. The adversary may rebut the presumption by establishing an effective interruption.

The special regime of amirié lands not administered by the Domains

Article 260 sets out a special rule for a determined category: the right of inscription of tasarrouf over amirié lands not submitted to the administration of the State’s property is acquired by ten years of possession with or without title, on condition that the possessor cultivates the land.

Three traits characterise this regime. The duration is uniform at ten years, without distinction according as the possessor disposes or does not dispose of a just title. The field is narrow: only amirié lands not administered by the Domains are covered; the State’s private domain and the assets of the public domain are excluded. The possessor must effectively cultivate the land: a passive possession, without agricultural exploitation, does not suffice.

No acquisition against one’s own title

Article 261 provides that no person may acquire by prescription a real right against his own title, nor against the title of his predecessors.

The rule is fundamental. No one may use possession to annul a juridical acknowledgement he has earlier underwritten (himself or his predecessor in title). A person who has signed a lease, a donation, or an acknowledgement of another’s ownership cannot later contend that he has acquired the ownership of the immovable by prescription: the title he has signed contradicts his claim.

Anticipated renunciation and renunciation after acquisition

Article 262 draws a precise distinction. Renunciation before acquisition is prohibited — it would amount to a renunciation of a future and uncertain juridical rule. Renunciation after acquisition is permitted, on condition that the renouncer be in full juridical capacity (that is, of age and not placed under a measure of protection).

Interruption of prescription

Effect of interruption (Article 263). Where prescription is interrupted, the duration of possession anterior to the interruptive event is not counted. Interruption therefore entails a reset to zero of the counter: the possessor may draw no benefit from the time elapsed before the interruptive event.

Causes of interruption (Article 264). Prescription is interrupted where the person invoking it loses possession, even at the hand of a third party. Interruption does not therefore require that the loss of possession be the act of the true owner; the mere material loss of possession — whatever its cause — interrupts the running of the delay.

Interruption by judicial action (Article 265). Prescription is also interrupted where the owner of the immovable pursues his right by way of judicial action, on condition that the action is not allowed to lapse (by procedural negligence, for example). The commencement of the action is not in itself sufficient: it must be pursued to judgment, failing which the running of prescription is deemed never to have been interrupted.

Suspension for the benefit of the absent and the incapable

Article 266 enunciates a rule of protection: prescription does not run, in real-property matters, against the absent or against persons stricken by incapacity by law.

The period does not run against these two categories, because their juridical situation does not allow them to pursue effectively their real-property affairs.

Structural tension with the regime of pre-emption. Article 248, on the one-year pre-emption delay in the absence of notification, provides expressly that this delay runs against the incapable and the absent. The divergence stems from a difference of finalities: the regime of pre-emption tends to stabilise acquisitions rapidly and to withdraw them from a prolonged anticipation, while the regime of acquisitive prescription seeks an equilibrium between the rights of the original owner and those of the possessor and privileges the juridical protection of vulnerable categories.

Bridge with the general law. The rules of suspension and interruption of the general law are at Articles 354 to 359 of the COC. Article 266 fixes the two categories of suspension applicable in real-property matters (absent and incapable); it prevails as lex specialis, with reference to the general law for the hypotheses not specifically regulated by Decree 3339.

V. Conclusion and outlook for Part Six

This Part has set out three of the modes by which the right of inscription at the Land Registry is acquired outside the general rule of Article 204 of the CRP: the promise of sale and the faculty of option (Articles 220 to 227), the right of pre-emption (Articles 238 to 254), and acquisitive prescription (Articles 255 to 266).

Three legislative strata postdate the 1930 text and govern the current regime: the Law of 5 February 1948 which fully overhauled Chapter V of Book IX on pre-emption; Law No. 461 of 31 August 1995 which restricted pre-emption to three categories (abolishing the adjoining neighbour), abrogated Article 241, and instituted the transitional indemnity regime capped at fifteen per cent of the value of the immovable for pending actions; and Law No. 583 of 23 April 2004 which expanded the categories immunised against acquisitive prescription from two to four (rights inscribed, private domanial property of the State, private domanial property of the municipalities, collective communal lands of the villages) and imposed the ex officio joinder of the Directorate-General of Real-Property Affairs and the concerned municipalities in any action founded on possession.

The essential points are the following.

• The promise of sale of an immovable engenders a real right (Article 221). The qualification opens the regime to the rules of land publicity and explains the protective mechanisms (provisional inscription, prohibition on disposition, real subrogation in case of mortgage). The provisional inscription is the condition of opposability to good-faith third parties (Article 224).
• Pre-emption is a post-sale unwinding remedy, not a pre-contractual privilege. The pre-emptor evicts the buyer from a completed and inscribed sale and substitutes himself in his place on identical terms (Articles 238 and 253). The institution diverges structurally from the common-law right of first refusal.
• The categories of pre-emptors are three and exclusive (Article 239 after Law 461/1995): the nude-property owner, the co-proprietor in indivision when the quota is sold to a person extraneous to the indivision, and the usufructuary. The adjoining neighbour and the other categories of the earlier drafting are extinguished.
• The time limits of pre-emption are short (Article 247: ten days after notification; Article 248: one year in the absence of notification). The delays run against the incapable and the absent, and are interrupted only by the commencement of an action.
• Pre-emption requires complete indemnification of the buyer (Article 249): price, contract expenses, and amelioration. The effective offer and consignation of the price on the day of the action is an essential condition of receivability.
• Acquisitive prescription operates only in the residual perimeter outside the Land Registry. The inscribed immovable is definitively immunised; the four categories of Article 255 (inscribed rights, private domanial property of the State, private domanial property of the municipalities, collective communal lands) carry the immunity to its full reach. The ex officio joinder of the public collectivities is a procedural rampart against simulated actions.
• The durations are dual (Article 257): five years with a just title, fifteen years without it. The amirié land not administered by the Domains is governed by a special regime of ten years on condition of cultivation (Article 260). Article 266 prevails as lex specialis on the suspension for the benefit of the absent and the incapable, with reference to Articles 354 to 359 of the COC for questions not specifically regulated by Decree 3339.

In Part Six of this series, we move to the mechanics of the Land Registry itself — Decrees No. 188 and No. 189 of 15 March 1926 — and to what is attached to them: the rules of constitution of the register, the types of inscriptions, the effect of the inscription against third parties, and the liability of the Land Registrar. These are the procedural foundations on which the whole of the substantive mechanisms set out in the preceding Parts of the series rest.

Practical tool: to compute the registration fees for any real-estate transaction (sale, mortgage, mortgage release, constitution of a usufruct), see Lebanese Real Estate Registration Fees Calculator and our complete guide to real-estate registration fees.

Related Posts in This Series

This series covers the Lebanese Code of Real Property in eight parts.

• Part One — Definition of Real Property and Types of Ownership
• Part Two — Real-Property Easements
• Part Three — The Immovable Pledge and the Vente à Réméré
• Part Four — Privileges, the Mortgage, and the Forced Sale
• Part Five — Promise of Sale, Right of Pre-emption, and Acquisitive Prescription (you are here)
• Part Six — The Land Registry
• Part Seven — Land Delimitation and Registration Works
• Part Eight (final) — Condominium Ownership of Built Immovables