The claim of removing trespass: A comparative study in light of legislative provisions and judicial decisions

Abstract

The claim of "removing trespass" is commonly use in Iraqi courts, although it not legally regulated by this name. The Iraqi judiciary has drawn up a special, detailed regulation for this claim by combining the provisions of disseisin and accession in light of the general rules in civil law, as well as the many influential judicial precedents. This claim is filing by property owner against the trespasser who built facilities on real estate, it embodied in a request to oblige the trespasser to remove the facilities at his expense and return the property without them to the owner. The judiciary has drawn up detailed provisions for "removing trespass" claim in terms of its meaning, scope, and relationship to claim of “preventing opposition”, as well as the content of decision of court and impediments to accepting this claim. "Removing trespass" claim did not dealing by an academic study in Iraq although the great importance of it due to the large number of trespass cases. Because the lack of an independent legal regulation, and the absence of academic study, we have dealt with this claim to introduce an integrated study takes from the provisions of "disseisin and accession", general rules, and judicial precedents. The study shall be useful to litigants, judges and lawyers, and shall provide scientific view for legal academics