The State owns vast assets ranging from beaches, roads, and squares to government buildings, vacant land, and utility installations. These assets are governed by a distinct legal regime differing from private ownership. Public property may not be sold, attached, or acquired by prescription however long a person has occupied it, a rule many are unaware of, leading to encroachments that end in removal orders and financial claims. In Kuwait the matter is governed by Law No. 105 of 1980 on the State property regime and related legislation. This article explains the distinction between the public and private domain and its consequences.
Public Domain and Private Domain Distinguished
Not all State assets are alike, and the distinction between them is the key to understanding the applicable regime:
- Public domain: property allocated to public benefit, whether by actual allocation or by legal instrument, such as roads, streets, beaches, public gardens, and buildings dedicated to public services.
- Private domain: property the State owns privately without allocation to public benefit, such as land held for investment or buildings let to tenants, governed by rules closer to private law subject to certain restrictions.
- The allocation test: what matters is allocation to public benefit rather than the form of title. Private domain property may become public by allocation, and allocation may cease, returning the property to the private domain.
- Consequences: classification as public domain attracts heightened protection not enjoyed by the private domain, addressed below.
Characteristics and Protection of Public Property
Public property enjoys exceptional protection resting on three settled rules regarded as the pillars of the regime:
- Inalienability: public property may not be sold, mortgaged, or gifted while allocated to public benefit. Any disposition affecting it is absolutely void and incapable of ratification.
- Imprescriptibility: an occupier acquires no ownership however long the period and however settled the possession. Such possession produces no legal effect.
- Immunity from attachment: creditors of the State may not attach public property in satisfaction of their claims, protecting the continuity of the public service.
- Criminal and administrative protection: encroachment on public property is criminalised, and the administration has power to remove encroachments administratively without a prior court judgment.
This protection exists for the public interest rather than for the benefit of the administrative body itself. It is accordingly a matter of public order which the court applies of its own motion.
Forms of Encroachment
Encroachment takes forms ranging from the flagrant to the apparently trivial that nonetheless bears the same character:
- Building on government land: erecting permanent structures on State-owned land without legal title.
- Annexing part of a road or pavement: extending a wall, canopy, or entrance at the expense of public space, the most common form.
- Commercial use of public space: placing tables, goods, or advertising boards on pavements without a permit.
- Encroachment on beaches and coastline: erecting barriers or structures restricting public access to the shore.
- Breach of permit conditions: obtaining a use permit for a defined purpose and then using it for another, or assigning it to a third party without approval.
- Interference with utility networks: unlawful connections or building over service corridors.
Administrative Removal and Its Safeguards
The legislature has granted the administration power to address encroachment directly, subject to procedural safeguards that cannot be disregarded:
- Inspection and record: the process begins with a record establishing the encroachment, its location, and its area. This record is the foundation for everything that follows.
- Notice: the administration serves notice requiring removal within a defined period. This is a substantive step whose omission invalidates the decision, save in cases of imminent danger.
- Removal order: issued with reasons and identifying the subject of the encroachment, executed administratively if the occupier does not comply.
- Execution at the offender's expense: the administration bears the cost of removal and recovers it from the occupier, together with a use charge for the period of occupation.
- Judicial challenge: the affected party may challenge the removal order before the Administrative Circuit and may apply for a stay of execution where the requirements of arguability and urgency are met.
It is important to appreciate that a challenge does not of itself suspend execution. Applying for a stay together with the claim is therefore the decisive practical step for anyone contending that the decision is defective.
Permitted Use of State Property
The prohibition on disposing of public property does not preclude its use. The law regulates lawful means of doing so:
- Use permit: a temporary administrative authorisation which is by its nature revocable whenever the public interest requires, and which creates no permanent vested right.
- Lease: applies to the State's private domain within defined controls and terms, generally subject to publicity and competition requirements.
- Usufruct granted by legal instrument: such as allocating land to a body or association for a defined purpose, its continuation tied to fulfilment of that purpose.
- Corresponding obligations: the user must pay the prescribed consideration, preserve the property, and return it in its condition when the permit ends.
Practical Guidance
- Verify your boundaries against the title document and the official site plan before any construction or fencing.
- Do not rely on long occupation as title. Prescription does not run against public property however extended.
- Obtain a written permit before any use of public space, even seasonal or temporary.
- On receiving a removal notice, seek legal review immediately rather than waiting. The periods are short and decisive.
- Retain every prior permit or approval and all receipts for use charges.
- When buying property, verify that it is free of any encroachment on State property, as liability may pass to the buyer.
Dealing with State property demands precision in classification and procedure, and a minor boundary error can become a removal order and a substantial financial claim. Yamnak Law Firm reviews property positions, examines encroachments, challenges removal orders before the Administrative Circuit, and advises on use permits and agreements for the exploitation of State property.
