Action to Stop Interference with the Use of Property in Jordanian Law
Many property owners in Jordan assume that recovering a property whose lease has ended is a simple matter: the term ends, an eviction request is filed, and the occupant leaves. In reality, the file most often collapses before it ever reaches its merits, either because the lawsuit was filed on a legal basis other than the correct one, or because its value was not assessed in the way the law requires. The action to stop interference with the use of property (man' al-mu'arada) rests on the provisions of the Civil Code and the Owners and Tenants Law, and the Jordanian Court of Cassation has drawn its boundaries in a number of rulings, among them ordinary panel Decision No. 122/2017 and Decision No. 337/2016. Because an error in characterizing the lawsuit or in assessing its value leads to the plaintiff's claim being dismissed even when their right on the merits is established, choosing the litigation route in these disputes is a matter to be settled with a specialist lawyer before the lawsuit is registered, not after it is dismissed.
1. The Contractual Basis and the Right of Use
The lease is one of the nominate contracts that concern the use of a thing. It is the legal bond that governs the relationship between landlord and tenant, under which the landlord undertakes to enable the tenant to use the leased premises for a specified period in return for a known consideration. The Jordanian legislature defined the lease as the landlord's transfer to the tenant of an intended use of the leased thing for a specified period in return for a known consideration. The essence of the contract, then, is to enable the tenant to use a specific thing for a fixed period in return for a payment the tenant undertakes to make.
The general principle is that the legal rules governing the lease are supplementary rules, unless a mandatory provision says otherwise. The two parties may therefore agree on terms that depart from the supplementary provisions, provided the agreement does not violate public policy, public morals or the requirements of the contract. This point alone explains why no single answer fits every lease dispute: what the parties agreed in the contract may change the rule that would have applied had they said nothing, and reading the contract is the first thing the lawyer does before anything else.
2. What the Action to Stop Interference Is
The action to stop interference with the use of property is filed by the holder of the right of use against anyone who interferes with their use or enjoyment of the property without legal justification. Dr. Salah al-Din al-Shoushari defined this action as the action brought by a person who holds the right to use a property against a person who interferes with that right, asking the court to order the defendant not to interfere with their use of the property.
Interference arises, for example, when the fixed term of the lease ends and the tenant remains in the leased premises without the landlord's consent or agreement to the continuation of the lease relationship. The tenant's possession then turns from lawful possession into unlawful possession, and the holder of the right is entitled to demand that this interference be stopped and that the property be handed over vacant.
The plaintiff in this action is therefore the holder of the right to use the property, whether owner or tenant depending on the case. The defendant is the person who holds the property or interferes with the right holder's use of it without legal basis. The subject of the action is stopping the interference with the use of the property and handing it over vacant.
The scope of this action extends to many forms of unlawful disturbance. Among them are occupying the property in cases where the relationship is not subject to the provisions of the Owners and Tenants Law; a tenant interfering with the owner's use of part of the property, such as building on the roof of the leased premises without legal basis; renting from someone who has no right to lease; occupation after the tenant has assigned the leased premises without the written consent the law requires; and the landlord's own interference with the tenant's right of use. The basis of the action is the same in all of these forms: a right of use met by unlawful disturbance or interference. Determining which form applies to a particular set of facts, however, and how that affects who is the proper party to the lawsuit, is a legal question that comes before litigation and that the lawyer settles after reviewing the documents.
3. The Difference Between Stopping Interference and Eviction
This is the distinction that a non-specialist gets wrong, and so loses the lawsuit before its merits are examined.
| Point of comparison | Action to stop interference | Action to evict from leased premises |
|---|---|---|
| Nature of the defendant's possession | Unlawful possession not based on any legal basis that justifies the occupation | Possession originally based on a lease relationship and a legal basis for occupation |
| Legal basis | Unlawful disturbance of the right of use | A legal cause has arisen that makes the tenant's continued occupation impermissible |
| Outcome when judgment is for the plaintiff | Handing over the property vacant | Handing over the property vacant |
| Need for expert examination to assess the use | Establishing the fair rental value for the purposes of the value of the claim, jurisdiction and court fees, where this is at issue | Expert examination is not required merely to determine the value of the use, except where the law requires it or the nature of the dispute calls for it |
The case law of the Jordanian Court of Cassation is settled that a lease signed with the tenant by someone who has no right to lease, under the provisions of Article 2 of the Owners and Tenants Law, makes the tenant's possession of the property unlawful, which justifies a judgment stopping the interference with the owner's use of the property and ordering it handed over vacant.
Note that the two actions meet in their practical result and part ways in their basis, and this is exactly the source of the danger: a plaintiff who sees the same result may take the wrong route, thinking it makes no difference, and then finds that the opponent's possession is characterized in a way that does not fit the action they filed.
Practical note: Whether the occupant's possession is lawful or unlawful is not a matter of appearances, as its character may change through a fact that occurs after the term ends. The lawyer here reviews whether there has been an express or implied renewal of the contract, the landlord's acceptance of continued occupation, or any other legal fact that affects the lawfulness of the possession. Do not accept rent for a period after the contract has ended before putting the matter to a lawyer, as accepting it may be read as evidence that the lease relationship continued or was renewed.
4. What a Claim of Expiry of the Term Rests On
Under Article 13(b) of the Owners and Tenants Law, an action filed by the owner against the tenant, where the cause of action is the expiry of the lease term, rests on two elements: the expiry of the lease term, so that no contractual basis remains to justify the tenant's continued occupation of the leased premises; and the tenant's continued occupation after the term has ended, without any agreement to renew the contract or the landlord's consent to continued occupation.
Once these are present, the owner may turn to the competent court to demand that the interference be stopped and the leased premises handed over vacant, together with a claim for compensation or the fair rental value under the applicable provisions. The provisions of Article 21 of the Owners and Tenants Law must also be taken into account when determining the appropriate legal route for claiming recovery of the property, and that point is in itself a fork in the road that the lawyer decides according to the nature of the relationship and its documents.
As for proving the term of the contract, in the case referred to the legislature did not require the lease to be in writing for the action to be filed. The contract may be oral, and its term proven by legally acceptable means depending on the circumstances of the case. If the contract is written, for a fixed term and concluded after August 31, 2000, producing the contract is one of the primary means of proving the lease relationship and its term. In both cases it remains necessary to verify that there has been no express or implied renewal of the contract after its term ended, and this verification comes before the lawsuit is filed and cannot properly be put off until afterward.
As for the notarized notice, it means one contracting party declaring their intention to the other regarding the performance of an obligation or bringing a contractual relationship to an end. In an action to stop interference arising from the expiry of the contract term, the mere expiry of the term does not make sending a notice a general condition for the action to be accepted, as long as the facts and the applicable provisions lead to the end of the basis on which the tenant relies for occupation. Even so, a notice may be useful in practice to prove that the landlord demanded eviction and to show that they did not consent to continued occupation, in addition to its effect in some cases relating to the performance of contractual obligations. Assessing whether it is needed in a particular file, and drafting it in a way that does not later harm the landlord's position, are matters the lawyer settles before it is sent.
5. The Financial Effect and the Fair Rental Value
The effect of the judgment is not limited to ending the interference and handing over the property. It extends to a financial consequence for the period during which the occupation continued without legal basis.
Article 708 of the Civil Code provides that the tenant must pay the fair rental value for the period during which they used the leased premises without right after the lease term ended, in addition to being liable for any damage the leased premises may suffer. Accordingly, a tenant's continued occupation of the leased premises after the contract term has ended and without the landlord's consent may give rise to an obligation to pay the fair rental value for the period of unlawful occupation, where the conditions for entitlement are met.
The fair rental value means the rent that experts assess for the property in dispute, by reference to comparable properties in terms of location, type of property, area, use and the other factors that affect the value of the use.
In the cases governed by Article 13(b) of the Owners and Tenants Law, the legislature also gave the owner the right to claim compensation for the period during which the leased premises were occupied after the lease ended and until the proceedings are concluded, on the basis the law allows. Compensation may be calculated on the basis of the fair rental value or on the basis of the rent fixed in the contract, according to the legal rules and the claim the owner submits. Where the fair rental value is claimed, the court may call on experts to determine the fair value of the use during the period of occupation.
Framing this financial claim on its correct basis from the statement of claim onward is what determines what the owner will actually receive, because the difference between the two bases can be large for properties whose contractual rent has fallen behind market rates.
6. The Value of the Claim, Jurisdiction and the Position of the Court of Cassation
Here lies the most dangerous procedural point in this area, because the court examines it on its own initiative and no agreement between the parties can help.
Determining the value of an action to stop interference carries procedural weight, as it determines which court has jurisdiction by value, in addition to its effect on court fees and avenues of appeal under the procedural rules in force.
The Jordanian Court of Cassation, in its Decision No. 337/2016 dated March 24, 2016, held that determining the value of the claim matters in actions to stop interference, particularly when the action is based on the expiry of the lease term, since the value of the claim is determined in light of the fair rental value, which forms the basis of the action to stop interference and of the amount claimed for the period of occupation. The Court confirmed that assessing the value of the claim is a matter of public policy, because it determines jurisdiction by value and whether the judgment can be appealed, and that failing to carry out the expert examination needed to establish the value of the claim may render the judgment premature.
In practical terms, this means the owner may win on the merits and lose on procedure: a judgment issued without the expert examination needed to assess the value is exposed to a fate that has nothing to do with the strength of the owner's right, and months of litigation and its fees are lost with it.
On the other hand, and on a point that reassures the owner, the Court of Cassation confirmed in ordinary panel Decision No. 122/2017 dated February 9, 2017 that filing an action to stop interference is not bound by any time limit as long as the defendant is still occupying the property without any legal ground that justifies that occupation, and it held that the conclusion reached by the Court of Appeal was consistent with the law.
Case law in general has shown the importance of distinguishing between lawful and unlawful occupation, since the basis of the action is a right of use held by the plaintiff and met by unlawful disturbance. It follows that the mere expiry of the lease is not enough on its own, apart from an examination of the facts and of any later agreements between the parties: it must be verified whether there was an express or implied renewal of the contract, the landlord's acceptance of continued occupation, or any other legal fact that affects the lawfulness of the tenant's possession.
Other issues are connected to these actions and are often raised with them in the same file, from proving the plaintiff's standing in the property to the validity of the documents the opponent relies on. We have dealt with their foundations in our article on proving property ownership in Jordan and in our article on the nullity of property transactions in Jordanian law. Where the property is held in co-ownership and the occupant is one of the co-owners, the lawyer examines whether partition of co-owned property under Jordanian law is a better route to ending the dispute than an action to stop interference.
Frequently Asked Questions
What is the action to stop interference with the use of property?
It is the action brought by a person who holds the right to use a property against anyone who interferes with that right without legal justification, asking that the defendant be ordered not to interfere with their use of the property and to hand it over vacant.
How does it differ from an action to evict from leased premises?
The action to stop interference is filed when the defendant's possession is unlawful and not based on any legal basis that justifies the occupation, whereas an eviction action presupposes a lease relationship and a legal basis for occupation that has been affected by a cause making its continuation impermissible. The practical result is the same when judgment is given for the plaintiff, but the legal basis is different.
Does the lease have to be in writing to file the action?
The legislature did not require this in the case referred to: the contract may be oral, and its term proven by legally acceptable means depending on the circumstances of the case. For a written, fixed-term contract concluded after August 31, 2000, producing it is one of the primary means of proving the relationship and its term.
Must a notarized notice be sent before the lawsuit is filed?
The mere expiry of the term does not make a notice a general condition for the action to be accepted, as long as the facts and the applicable provisions lead to the end of the basis for occupation. Even so, a notice may be useful in practice to prove that the landlord demanded eviction and to show that they did not consent to continued occupation.
Is the owner entitled to payment for the period the occupant stays after the contract ends?
Article 708 of the Civil Code provides that the tenant must pay the fair rental value for the period during which they used the leased premises without right after the lease term ended, in addition to being liable for any damage the leased premises may suffer.
What is the fair rental value and how is it determined?
It is the rent that experts assess for the property in dispute by reference to comparable properties in terms of location, type of property, area, use and the other factors that affect the value of the use.
Does the action lapse with the passage of time?
The Court of Cassation confirmed in ordinary panel Decision No. 122/2017 dated February 9, 2017 that filing an action to stop interference is not bound by any time limit as long as the defendant is still occupying the property without any legal ground that justifies the occupation.
What if the owner accepts rent after the contract has ended?
Depending on the circumstances of the case and the applicable provisions, this may amount to evidence that the lease relationship continued or was renewed, which directly affects the lawfulness of the occupant's possession and the correct legal route for the claim. That is why the matter is put to the lawyer before any amount is accepted for a later period.
Legal Consultation
Property recovery disputes are among the disputes in which the holder of the right most often loses for reasons that have nothing to do with their right: it is enough for the lawsuit to be filed on a basis that does not fit the character of the opponent's possession, or for its value to be assessed without the expert examination the law requires, for the judgment to be exposed to reversal and for months of litigation and its fees to be lost. On top of that, the lawfulness of the occupant's possession can be overturned by a simple act of the owner, such as accepting payment for a period after the contract ended, turning a strong position into a dispute over implied renewal. That is why putting the contract, the ownership documents and the facts of what happened after the term ended before a practice that handles this type of action, before the lawsuit is registered, is what actually protects the right. This is what our firm's team provides through its enforcement cases and property recovery services, including characterizing the action, assessing its value and preparing the claim for the fair rental value, in addition to what we have covered in our article on recovering leased premises in Jordanian law. You can contact Alabwini Law Firm to arrange a specialist legal consultation.
