Israeli land and property laws

The Ottoman Empire embarked on a systematic land reform program in the second half of the 19th century. Two of the new laws were the 1858 land registration law and the 1873 land emancipation act. Prior to 1858, land in Palestine, then a part of the Ottoman Empire since 1516, was cultivated or occupied mainly by subsistence farmers. Land ownership was regulated by people living on the land according to customs and traditions. Usually, land was communally owned by village residents, though land could be owned by individuals or families.[12]

The Ottoman Land Code of 1858 required land owners to register ownership. The reasons behind the law were twofold: (1) to increase tax revenue, and (2) to enable the government exercise greater state control over the area. However, many farmers did not register their claims, for several reasons:[12] for example, land owners were subject to military service in the Ottoman Army, there was general opposition to official regulations from the Ottoman Empire, and to evade payment of taxes and registration fees to the Ottoman Empire.

The registration process itself was open to falsification and manipulation. Land collectively owned by village residents ended up being registered to one villager, and merchants and local Ottoman administrators took the opportunity to register large areas of land in their own name. The result was that land became registered to people who had never lived on the land; while the subsistence farmers, having lived there for generations, retained possession, but became tenants of absentee owners.[12]

The 1873 land emancipation act gave Jews the right to own land in Palestine under their own name. This 1873 secular land reform/civil rights law was popularly confused with a religious law and it was held as a "humiliation to Islam that Jews should own a part of the Muslim Ummah". The confusion between religious and secular law made the laws (ended in 1873) against Jewish ownership of land 'religious laws'.

Over the course of the next decades land became increasingly concentrated on fewer hands; tenant farmers continued to work on the land, giving landlords a share of the harvest. This led to both an increased level of Palestinian nationalism as well as civil unrest.[12][13] At the same time, the area witnessed an increased flow of Jewish immigrants who did not restrict themselves to the cities where their concentration offered some protection from persecution. These Jews came hoping to create a new future in what they regarded as the homeland of their ancestors. Organizations created to aid Jewish settlement in Palestine bought land from Arab and absentee landowners.[12][13]

World War I and the dissolution of the Ottoman Empire led to British control over the area in 1917, followed by the creation of the Mandate for Palestine by the League of Nations in 1922, which remained in effect until the establishment of Israel in 1948. During this period several new land laws were introduced, including The Land Transfer Ordinance of 1920, The Correction of Land Registers Ordinance of 1926 and The Land Settlement Ordinance of 1928.[14]

It was the policy of the World Zionist Organization to encourage Jewish acquisition of land in Palestine for Jewish settlement. For that purpose, the Fifth Zionist Congress (1901) set up the JNF to buy suitable land. The rules of the JNF forbade it from selling the land it acquired, but to lease it. Land owned by the JNF was leased to kibbutzim and other Jewish settlements on long-term leases. At the end of 1935, JNF held 89,500 acres (362 km²) of land housing 108 Jewish communities. In 1939, 10% of the Jewish population of the British Mandate of Palestine lived on JNF land. JNF holdings by the end of the British Mandate period amounted to 936 km².[15] By 1948, the JNF owned 54% of the land held by Jews in the region,[16] or a bit less than 4% of the land in Palestine (excluding Transjordan).[17]

From 1936, the British administration introduced a series of land regulations: The Land Transfer Regulations of 1940 divided the country into zones, with different restrictions on land sales in each. As summarized by the Anglo-American Committee of Inquiry in 1946,

In Zone A, consisting of about 63 percent of the country including the stony hills, land transfers save to a Palestinian Arab were in general forbidden. In Zone B. consisting of about 32 percent of the country, transfers from a Palestinian Arab save to another Palestinian Arab were severely restricted at the discretion of the High Commissioner. In the remainder of Palestine, consisting of about five percent of the country-which, however, includes the most fertile areas- land sales remained unrestricted.[18]

The Inquiry recommended the repeal of the Regulations, without effect.

After Israel's declaration of independence on 14 May 1948, state lands of the Mandate reverted to the State of Israel. In addition, property left by Arab refugees passed into the control of the new Israeli government.[19] The newly formed Israeli ministries, committees and departments took over functions performed earlier by ‘National Institutions’. One of the first steps adopted by the new state was the reactivation of the Defence [Emergency] Regulations adopted earlier by the British in 1939 (and later repealed). Since British regulations had applied to the whole country, the Government of Israel passed the Law and Administration Ordinance [Amendment] Law [1948] to reverse the British repeal and reinstate these Emergency Regulations.[5] Some of this land was sold by the government to the JNF, which had developed expertise in reclaiming and developing waste and barren lands and making them productive.

In 1960, under Basic Law: Israel Lands, JNF-owned land and government-owned land were together defined as "Israel lands," and the principle was laid down that such land would be leased rather than sold. The JNF retained ownership of its land, but administrative responsibility for the JNF land and government-owned land, passed to a newly created agency called the Israel Land Administration or ILA. The lease principle is hardly new to the area however as it was practiced for centuries under the Ottoman tapu system. To this day, the Land Registration Office is commonly known in Israel as the tabu, the Arabic pronunciation of the Turkish tapu.[20]

The proclamation repealed the White Paper of 1939 and sections 13 and 15 of the Immigration Ordinance of 1941.

It also repealed the Land Transfer Regulations of 1940 retroactively to 18 May 1939, invalidating transactions conducted since then.[21]

The Law and Administration Ordinance, 5708-1948 at the Wayback Machine (archived October 28, 2009) defined the competences and composition of the Provisional Government. The law repealed sections 13 to 15 of the 1941 Immigration Ordinance and regulations 102 to 107C of the 1945 Defence (Emergency) Regulations, in order to allow Jews who entered the country illegally under Mandate to remain as legal immigrants. The 1940 Land Transfers Regulations were repealed retroactively from 18 May 1939, to allow unregistered transfers to be filed.[21] In 1967, the law was used for de facto annexation of East Jerusalem.[22]

After the 1948 Arab–Israeli War, the Area of Jurisdiction and Powers Ordinance, 5708-1948, extended Israeli land laws to "any part of Palestine which the Minister of Defence has defined by proclamation as being held by the Defence Army of Israel"[23] Article 3 of the law made it retroactive and effective from 15 May 1948, the day after the declaration of the establishment of the State of Israel.

The Abandoned Areas Ordinance, 5708-1948 at the Wayback Machine (archived October 28, 2009) (published 30 June 1948, effective retroactively from 16 May 1948) defined an "abandoned area" as "any area or place conquered by or surrendered to armed forces or deserted by all or part of its inhabitants, and which has been declared by order to be an abandoned area". The Ordinance also provided for regulating "the expropriation and confiscation of movable and immovable property, within any abandoned area". The government was authorised to determine what would be done with this property.[23]

Article 125 states:

A Military Commander may by order declare any area or place to be a closed area for the purposes of these regulations. Any person who, during any period in which any such order is in force in relation to any area or place, enters or leaves that area or place without a permit in writing issued by or on behalf of the Military Commander shall be guilty of an offence against these Regulations.

According to Kirshbaum, the law was used to exclude a land owner from his own land so that it could be expropriated under the Land Acquisition (Validation of Acts and Compensation) Law (1953).[24]

According to the Journal of Palestine Studies, the law designated an area as "security zone" which meant that no one could permanently live in, enter, or be in said zone.[25] According to COHRE and BADIL (p. 40), "this measure was used extensively in various parts of the country, including areas in the Galilee, near the Gaza Strip and close to the borders. Lands so acquired would often be sold to the JNF. These regulations remained in place until 1972."

According to COHRE and BADIL (p. 40) this law (in Hebrew: תקנות שעת חירום (עיבוד אדמות מוברות)) was originally enacted in 1948 and amended in 1951 as the Emergency Regulations (Cultivation of Waste Lands) Law, 5711-1951. This law authorises the Ministry of Agriculture to declare lands as ‘waste’ lands (Article 2) and to take control over ‘uncultivated’ lands (Article 4). Article 2 states:

The Minister of Agriculture may warn the owner of waste land to cultivate the land or to ensure-that it is cultivated.

Article 4 reads:

If the owner of the waste land does not apply to the Minister of Agriculture as specified in regulation 3, or if the Minister of Agriculture is not satisfied that the owner of the land has begun or is about to begin or will continue to cultivate the land, the Minister of Agriculture may assume control of the land in order to ensure its cultivation.

COHRE and BADIL (p. 40) consider that "this law operated in conjunction with other laws including those declaring ‘security areas’. Once people (Arabs) were barred from their lands, these could be defined as ‘uncultivated’ and seized".

This law repeals the earlier Emergency Regulations (Requisition of Property) Law, 5709-1948. The law authorises the requisition of land when (Article 3):

...the making of the order is necessary for the defence of the state, public security, the maintenance of essential supplies or essential public services, the absorption of immigrants or the rehabilitation of ex-soldiers or war invalids.

The law includes clauses concerning the requisition of houses (chapter three), and states (Article 22b) that:

A competent authority may use force to the extent required for the carrying into effect of an order made by a competent authority or a decision given by an appeal committee under this Law.

According to COHRE and BADIL (p. 41), "the law retroactively legalised land and housing requisitions that were carried out under existing emergency regulations. The law was amended in 1952 and 1953. A 1955 amendment, Land Requisition Regulation (Temporary Provision) Law, 5715- 1955, allows the Government to retain property seized under the law for longer than the three years originally specified. Along with a later (1957) amendment, the law also specified that any property held after 1956 would be determined to have been acquired on the basis of the British Land (Acquisition for Public Purposes) Ordinance of 1943.

This law replaced the Emergency Regulations (Absentees’ Property) Law, 5709-1948. According to Sabri Jiryis (p. 84),[32] the definition of "absentee" in the law was framed in such a way as to ensure that it applied to every Palestinian or resident in Palestine who had left his usual place of residence in Palestine for any place inside or outside the country after the adoption of the partition of Palestine resolution by the UN. Article 1(b) states that "absentee" means:

"absentee" means -

(1) a person who, at any time during the period between the 16th Kislev, 5708 (29th November, 1947) and the day on which a declaration is published, under section 9(d) of the Law and Administration Ordinance, 5708-1948(1), that the state of emergency declared by the Provisional Council of State on the 10th Iyar, 5708 (19th May, 1948)
(2) has ceased to exist, was a legal owner of any property situated in the area of Israel or enjoyed or held it, whether by himself or through another, and who, at any time during the said period -

(i) was a national or citizen of the Lebanon, Egypt, Syria, Saudi Arabia, Trans-Jordan, Iraq or the Yemen, or

(ii) was in one of these countries or in any part of Palestine outside the area of Israel, or

(iii) was a Palestinian citizen and left his ordinary place of residence in Palestine

(a) for a place outside Palestine before the 27th Av, 5708 (1st September, 1948); or

(b) for a place in Palestine held at the time by forces which sought to prevent the establishment of the State of Israel or which fought against it after its establishment;

(2) a body of persons which, at any time during the period specified in paragraph (1), was a legal owner of any property situated in the area of Israel or enjoyed or held such property, whether by itself or through another, and all the members, partners, shareholders, directors or managers of which are absentees within the meaning of paragraph (1), or the management of the business of which is otherwise decisively controlled by such absentees, or all the capital of which is in the hands of such absentees;

According to COHRE and BADIL (p. 41), the provisions in the law made sure that the term 'person' did not apply to Jews. The law also applied to Arabs who had become citizens of the State of Israel but were not in their usual place of residence as defined by the law. In this case, they were referred to as 'present absentees' and many lost their lands.

The Law then appointed a Custodianship Council for Absentees' Property, whose president was to be known as the Custodian of Absentees' Property (Article 2). The law then made these properties the legal holdings of the Custodian. According to Art. 4.(a)(2):

every right an absentee had in any property shall pass automatically to the Custodian at the time of the vesting of the property; and the status of the Custodian shall be the same as was that of the owner of the property.

According to COHRE and BADIL (p. 41), those who were found to occupy property in violation of this law could be expelled, and those who built on such property could have their structures demolished. The law came to apply not only to Palestinians who fled but also to those who were away from their regular places of residence (as described in the previous paragraph).

According to the Israel Government Yearbook, 5719 (1958) (p. 235), the "village properties" of absentee Arabs "which was appropriated by the Custodian of Absentees' Property" included "[the land of] some 350 completely abandoned or semi-abandoned [Arab] villages, the aggregate area of which was about three-quarters of a million dunums .... Among the agricultural properties were 80,000 dunums of abandoned groves... [and] more than 200,000 dunums of plantations were taken over by the custodian. "It was estimated that "the urban properties ... include[d] 25,416 buildings in which there are 57,497 dwellings and 10,727 business and trade premises."[33]

According to COHRE and BADIL (p. 41), "estimates of the total amount of ‘abandoned’ lands to which Israel laid claim vary between 4.2 and 5.8 million dunum (4 200-5 800 km²). Between 1948 and 1953 alone, 350 of the 370 new Jewish settlements were created on lands confiscated under the Absentees’ Property Law."

The Absentees’ Property Law underwent several amendments, including:

• The Absentees’ Property (Amendment) Law, 5711-1951 at the Wayback Machine (archived October 28, 2009),
• The Absentees’ Property (Amendment) Law, 5716-1956 at the Wayback Machine (archived October 28, 2009).

Both amendments clarifying rental arrangements and tenant protection rights on such property.

• The Absentees’ Property (Amendment No. 5) (Increase of Payment to Absentees’ Dependants and to Absentees) Law, 5727-1967 at the Wayback Machine (archived October 28, 2009) and subsequent amendments to the latter.

According to COHRE and BADIL (p. 42), the Government of Israel did not automatically gain title to lands seized under the Absentees’ Property Law. This was accomplished under the Land Acquisition (Validation of Acts and Compensation) Law, 5713-1953. This law legalised expropriations (retroactively in many cases) for military purposes or for the establishment of (Israeli) settlements.

The law allows the Government to claim the property of lands which are not in the possession of its owner as of 1 April 1952. Article 2 (a) states:

Property in respect of which the Minister certifies by certificate under his hand--

(1) that on the 6th Nisan, 5712 (1st April, 1952) it was not in the possession of its owners; and

(2) that within the period between the 5th Iyar, 5708 (14th May, 1948) and the 6th Nisan, 5712 (Ist April 1952) it was used or assigned for purposes of essential development, settlement or security; and

(3) that it is still required for any of these purposes

The further states the monetary compensation for those losing their lands and that in the case were the lands corresponded to agricultural lands, where those lands formed their main source of livelihood, lands elsewhere would be offered. Article 3 reads:

(a) The owners of acquired property are entitled to compensation therefore from the Development Authority. The compensation shall be given in money, unless otherwise agreed between the owners and the Development Authority. The amount of compensation shall be fixed by agreement between the Development Authority and the owners or, in the absence of agreement, by the Court, as hereinafter provided.

(b) Where the acquired property was used for agriculture and was the main source of livelihood of its owner, and he has no other land sufficient for his livelihood, the Development Authority shall, on his demand, offer him other property, either for ownership or for lease, as full or partial compensation. A competent authority, to be appointed for this purpose by the Minister, shall, in accordance with rules to be prescribed by regulations, determine the category, location, area, and, in the case of lease, period of lease (not less than 49 years) and the value of the offered property, both for the purpose of calculating the compensation and for determination of the sufficiency of such property for a livelihood.

(c) The provisions of subsection (b) shall add to, and not derogate from, the provisions of subsection (a).

According to Alexandre Kedar (p. 153), until 1959, compensation was calculated on the basis of the 1950 land values. The author cites a 1965 ILA report which shows that over 1.2 million dunum (about 1 200 km²) of Arab land were taken in this manner.[34]

Archived October 28, 2009, at the Wayback Machine

This law extends the scope of the Absentees' Property Law and earlier regulations concerning the Muslim religious endowment, the Waqf. Article 29A (c) states:

For the purposes of this section and of sections 29B to 29H, "endowment property" means Muslim waqf property being immovable property validly dedicated.

According to COHRE and BADIL (p. 41), it allows the Government to confiscate vast amounts of Muslim (charity) land and other properties, including cemeteries and mosques, and place them under Government administration. According to the law, income from these properties would be used in part to build institutions and provide services for the Muslim inhabitants in areas where such property is located. The law amends the 1950 law in the following way:

In section 4 of the Absentees' Property Law, 5710-1950(1) (hereinafter referred to as "the principal Law"), the following subsection shall be inserted after subsection (a):

(1) Where any property is an endowment under any law, the ownership thereof shall vest in the Custodian free from any restriction, qualification or other similar limitation prescribed, whether before or after the vesting, by or under any law or document relating to the endowment if the owner of the property, or the person having possession or the right of management of the property, or the beneficiary of the endowment, is an absentee. The vesting shall be as from the 10th Kislev, 5709 (12th December, 1948) or from the day on which one of the aforementioned becomes an absentee, whichever is the later date.

(2) The provisions of this subsection shall not void any restriction, qualification or other similar limitation prescribed by or under this Law or imposed by the Custodian and shall not void any transactions effected by him.".

(b) This section shall have effect retroactively as from the date of the coming into force of the principal Law.

According to Meron Benvenisti:

"Most Waqf property in Israel was expropriated under the Absentee proberty Law (giving rise to the sarcastic quip -"Apparently God is an absentee [in Israel]") and afterward handed over to the Development Authority, ostensibly because this was necessary to prevent its being neglected, but actually so as to make it possible to sell it. Only about one-third of Muslim Waqf property, principally mosques and graveyards that were currently in use, was not expropriated. In 1956 its administration was turned over to the Board of Trustees of the Muslim Waqf, which by then was made up of collaborators appointed by the authorities. These "trustees" would sell or "exchange" land with the ILA without any accountability to the Muslim community. Anger over these deeds led to acts of violence within the community, including assassinations.".[35]

This law establishes the procedure to compensate owners of lands which have been confiscated under the Absentees’ Property Law (1950). It establishes the requirements to be eligible for compensation (Article 1):

The persons entitled to compensation are all those who were Israel residents on 1 July 1973, or became residents thereafter, and prior to the property becoming vested in the Custodian of Absentees' Property were

1.the owners of property, including their heirs, or

2.the tenants only of urban property, including spouses living with them at the last mentioned date, or

3.the lessees of property, or

4.the owners of any easement in property.

Other provisions specify the time limit legally allowed for filing a claim, whether compensation would be awarded in cash or bonds (depending on circumstances), the payment schedule (generally over a fifteen-year period) and other provisions. Appended to the law is a detailed schedule of how compensation is to be calculated for each type of property, urban or agricultural. Some provisions of this law were amended in later years.[36]

This ordinance was originally enacted by the British in 1943 and later used by Israel to authorise the confiscation of lands for government and ‘public’ purposes (see eminent domain). These included building government offices, creating lands and parks, and suchlike. Kedar (p. 155) describes this law as “the main general land expropriation law in force in Israel today”.

A 1964 amendment to this law, Acquisition for Public Purposes (Amendment of Provisions) Law, 5724-1964, specifies procedures to be followed in the acquisition of lands based on this and other laws, including the original Land (Acquisition for Public Purposes) Ordinance (1943), the Town Planning Ordinance (1936), and the Roads and Railways (Defence and Development) Ordinance (1943).

The 1964 amendment also defines circumstances under which no compensation would be offered to those whose lands had been expropriated; generally, where the expropriation had occurred prior to the coming into force of this law. Additional amendments corrected various laws under which such lands might be expropriated, substituting Israeli laws for earlier British versions and clarifying rights to compensation.

According to COHRE and BADIL (p. 43), Israel used this law extensively to expropriate Palestinians lands. Many Palestinians challenged the expropriations and did not accept compensation. A 1978 amendment to the law, Acquisition for Public Purposes (Amendment of Provisions) (Amendment No.3) Law, 5738-1978, addresses this issue by decreeing that where the owner refuses compensation or does not give consent within the time allotted, these funds would be deposited with the Administrator-General in the name of the owner. However, this provision has no bearing on the matter of the expropriation itself. According to the COHRE and BADIL study, lands acquired under this law were used for the building of new Jewish settlements or other ventures from which Arab Palestinians with Israeli citizenship were excluded. The Jewish-dominated sector of Upper Nazareth was created in this manner and was the subject of several lawsuits filed at the Supreme Court.

According to COHRE and BADIL (p. 41), this law extends Israeli jurisdiction to ‘the Occupied Area of Jerusalem’ (the western part of Jerusalem that was incorporated into Israel in 1948). It declares that all orders and regulations enacted by the Military Governor or other Government ministries shall be given the force of law.

Archived October 28, 2009, at the Wayback Machine

According to COHRE and BADIL (p. 42), the ‘Authority for the Development of the Country’ (or the ‘Development Authority’) was established to work with relevant Government agencies to acquire and prepare lands for the benefit of newly arriving Jewish immigrants. Vast amounts of land allocated for this purpose were bought from the ‘Custodian of Absentee Property’. Pursuant to this law, lands passing into the hands of the State or to JNF control would be deemed inalienable. Article 3(4)(a) reads:

The Development Authority is competent:

to sell or otherwise dispose of, let, grant leases of, and mortgage property;provided that

(a) the Development Authority shall not be authorised to sell, or otherwise transfer the right of ownership of, property passing into public ownership, except to the State, to the Jewish National Fund, to an institution approved by the Government, for the purposes of this paragraph, as an institution for the settlement of landless Arabs, or to a local authority; the right of ownership of land so acquired may not be re-transferred except, with the consent of the Development Authority, to one of the bodies mentioned in this subparagraph;

(b) the Development Authority shall not be authorised to sell immovable property not being land passing into public ownership, unless such property has first been offered to the Jewish National Fund, and the Jewish National Fund has not agreed to acquire it within a period fixed by the Development Authority;

(c) the total area of immovable property, not being land passing into public ownership, which the Development Authority may sell, or the right of ownership of which it may otherwise transfer, shall not exceed 100,000 dunams, but immovable property acquired by any of the bodies mentioned in subparagraph (a) shall not be taken into account for the purposes of this subparagraph;

(d) the sale, or the transfer of the right of ownership in any other way, of immovable property, being land passing into public ownership or other immovable property, shall be effected by decision of the Government in each individual case;

Archived October 28, 2009, at the Wayback Machine

The Prescription Law was first enacted in 1958 and amended in 1965. It repeals critical provisions of, and reverses British practices in relation to, the Ottoman Land Code (1858).

According to COHRE and BADIL (p. 44), the Prescription Law is one of the most critical to understanding the legal underpinnings of Israel’s acquisition of Palestinian lands. Although not readily apparent in the language of the law, the purpose behind this legislation was to enable Israel to claim as ‘State lands’ areas where Palestinians still predominated and where they could still assert their own claims on the land (for example, in the north of the country). The authors claim that this law, in conjunction with the Land (Settlement of Title) Ordinance (Amendment) Law, 5720-1960, the Land (Settlement of Title) Ordinance (New Version), 5729-1969 and the Land Law, 5729-1969, was designed to revise criteria related to the use and registration of Miri lands – one of the most prevalent types in Palestine – and to facilitate Israel’s acquisition of such land.

Under this law, farmers are required to submit documentation proving uninterrupted cultivation of designated plots of land over a 15-year period (the ‘prescription’ period). Article 5 states:

The period within which a claim in respect of which an action has not been brought shall be prescribed (such period being hereinafter referred to as "the period of prescription") shall be

(1) in the case of a claim not relating to land — seven years;

(2) in the case of a claim relating to land — fifteen years or, if the land has been registered in the land register after settlement of title in accordance with the Land (Settlement of Title) Ordinance(1), twenty-five years.

The law adds the proviso that lands purchased after 1 March 1943 would be subject to a 20-year verification period. The law also specifies a five-year hiatus between 1958 and 1963 that would not be counted toward this ‘prescription’ period.

According to COHRE and BADIL, by 1963, much of the lands in question had still not been surveyed. Therefore, calculations of the requisite 20-year verification period were in effect halted, and the State was in a position to press its own claims to these lands. The authors consider that the Prescription Law had even more complex ramifications. For example, Israel decided that British aerial photographs of 1945 would be used to verify cultivation. Arab farmers who had not yet begun tilling their lands at the time the photographs were taken found they were by definition unable to meet the requisite 15-year ‘prescription’ period. Also, as Israel did not accept other evidence of cultivation, such as tax records, many Palestinians fell victim to a ‘Catch-22’: in the process of trying to establish their legal ownership they (retroactively) lost their lands.

According to COHRE and BADIL a 1965 report by the Israeli Land Administration (ILA) reflects on the rationale behind the law:

In the Northern area, there was a danger of the [acquisition of rights] by prescription according to the Statute of Limitation (1958) regarding all State land, and those [lands] of the Custodian of Absentee Property and the Development Authority. Particularly in the area of the [Arab] minorities where various elements began to take over State land and those of the Development Authority, and [sic] there was worry that these lands would be taken away from the hand of the ILA [Israeli Land Administration] and be transferred to the ownership of the trespassers.[37]