Winds and Poles: An Important Observation on Law 121
The text criticizes Law 121/2026, which prevents other owners from disposing of a shared property if one of the heirs resides in it, deeming it arbitrary and a legislative deficiency.
Translated by Qiyas from الجريدة — Original source
Decree-Law No. 121/2026 amending the Civil Code stipulates that the court may order one of the co-owners or heirs to remain in any residential common-property building, subject to two conditions: first, that the property serves as their sole residence; and second, that their financial means are insufficient to purchase a suitable residential property. It also provides that any of the other co-owners may request the termination of this co-owner’s stay in the common property if either of these conditions ceases to exist.
It is evident that this law prevents other co-owners or heirs from disposing of their property as long as one of the co-owners or heirs resides in it, until that heir purchases a residential property. The law does not specify the nature of this co-owner or heir, representing a legislative deficiency. Had this restriction been limited to the interest of the mother or orphaned minor children of the family until they grow up and become employed, it would have been acceptable and justified. However, restricting the disposal rights of other co-owners in favor of any co-owner, even if he is an adult male with a job, constitutes arbitrariness and a violation of others’ rights. Other co-owners may need the proceeds from the sale of the property to buy homes for their families, improve their living standards, or meet essential needs of their children. Furthermore, enacting such a broad provision without specific exceptions prevents heirs from exercising their legitimate rights merely upon a request by one heir or co-owner to remain in the home against their will until they purchase another house. This could lead to exploitation and foster animosity and discord among members of the same family.
It is worth noting that purchasing any property in Kuwait is costly and extremely expensive. The co-owner’s stay in the common-property home could last for decades. It is well known that thousands of Kuwaiti families rent homes for several years while waiting to obtain a government-subsidized house. Therefore, imposing the condition of “purchasing a property” is a prohibitive requirement that the vast majority of Kuwaitis cannot meet.
Failing to distinguish between these various cases constitutes a legislative deficiency that must be amended.
It is a well-established principle in Islamic Sharia that the distribution of an estate should be expedited, and every rightful claimant should receive their due share. Halting the distribution of an estate for decades without a valid religious or necessary justification may result in numerous negative consequences, including the loss of rights and opportunities for others.
Furthermore, Article 18 of the Constitution stipulates that “private property is inviolable; no one shall be prevented from disposing of his property except within the limits prescribed by law.” The constitutional principle is that there should be no restriction on disposing of property except within the bounds of the law, i.e., for compelling interests such as the rights of the mother or orphans, and similar cases. Conversely, restrictions without a necessary cause have no basis in Sharia, such as when a co-owner is fully competent and capable of renting a suitable home for themselves if single, or for their family, similar to the thousands of Kuwaiti families awaiting government-subsidized housing.
