Land endowment in Israel – how to verify a transaction from a century ago?

Israel has a complicated system of land endowments, both because endowments to different religions are verified by different religious courts, and because any particularly old land endowment in Israel is adjudicated according to the Ottoman legal system under which it was granted.

In the particular legal case reviewed in this article, both our clients and the Islamic Waqf lay claim to an entire building which was inherited from the clients’ grand-grandparent. Which part of the building (if any) was endowed to the Waqf as a house of prayer in the 1930s, and could either side lay claim to the whole building? The court case involved not only Israeli land law, but also Ottoman legislation about specific types of land and religious endowments, as well as translation and interpretation of antiquated Arabic.

What is “the Waqf”?

“In Islamic law, a waqf (Arabic: وَقْف; [ˈwɑqf]), plural awqaf, is an inalienable endowment – typically a building, plot of land or another property that has been dedicated for Muslim religious or charitable purposes… By metonymy, the foundation that administers the waqf of Jerusalem has itself come to be known as “the Waqf”” or “The Jerusalem Islamic Waqf”.

Historical Background:

Well back in the 1930s, our clients’ (the plaintiffs’) grand-grandparent has endowed a part of his house to be used as a mosque, a public house of prayer, managed by the Waqf. Shortly thereafter, he attempted to revoke said endowment. In addition, before or after the endowment, he made a “bill of sale” of the entire house to his children, the plaintiffs’ grandparent and grand-aunt.

That said, some portion of the house was used as a place of worship since the 1930s and into the 2010s, while other portions of the house served as a living space to various family members and\or were rented out.

In the 2010s, after the plaintiffs’ grandfather passed away and certain portions of the house \ rental space were left unused, the mosque expanded its facilities into the currently vacant portions of the house.

As our clients took possession of the house, they filed an injunction and demanded that the Waqf vacate not only the rooms it has recently overtaken, but also the portion of the house that was used as a mosque for decades.

In turn, the Waqf’s representatives made the bold claim that the entire house was endowed as a place of worship, and that the heirs should vacate it and surrender its usage to the Waqf.

How to determine which parts of the house were endowed to the family and which to the Waqf?

The British mandate, before the establishment of the state of Israel, maintained most Ottoman laws, including those regarding real estate and religious endowments. Such real estate transactions, listed in the land registry (Tabu) were “grandfathered” into Israel jurisprudence, even if they couldn’t have taken place under Israeli law. As a result, both sides have to convincingly argue as to the legal realities in the 1930s, based on Ottoman law and documents drafted in Arabic.

The original endowment is translated differently on the part of the plaintiff and on the part of the Waqf, with one interpretation holding that the endowment was a single room and a minaret, while the other holding that the entire house as well as public space around it, including the well, were endowed.

The Arabic in which the document was written was probably antiquated and formal even at the time, and it is not certain that the endower fully understood all possible interpretations of the scope of his endowment. Conversely, it is possible that he grew aware of the room for expanded interpretation, which is why he wished to revoke the endowment shortly after granting it.

However, the Waqf trustee refused to return the property, and the Shariah law verdict was that the Waqf is an inalienable endowment which cannot be revoked. Furthermore, the endower’s children failed to appeal the endowment within 10 years of reaching their age of majority.

This reflects, on the one hand, on the endower’s desires or conclusions nearly a century ago, but also on the family apparently accepting the resulting status quo for several generations.

Usage as precedent

Given that the family and the Waqf have shared the home for over 70 years, with the Waqf endowment being used as a public prayer house, and the rest of the house being used by the family, it can be logically assumed that the way the original endower and the Waqf initially shared the home was the intended endowment, even if the heirs of the endower and the Waqf cannot reach agreement about the exact dimensions of the original endowment based on the documents,. In other words, the single room + minaret were in all reasonable probability, the permanent endowment that the heirs did not attempt to revoke, while the rest of the home belonged to the family and used for their own needs, whether for residence or rental.

The judgment:

Given the above, our clients were denied their request to evict the Waqf from the entirety of the house, including the prayer room and minaret. Said endowed portion of the property remained as inalienably endowed property (Waqf) of the Jerusalem Islamic Waqf.

However, given that the Waqf initiated the conflict by expanding to take control of parts of the home that were in previous usage of the family or their tenants, and ignored the initial injunction to restrict its expansion before the case could be adjudicated in court, it was considered at fault, and required both to remove its presence from  the non-endowed portion of the house and to reimburse our clients for their legal expenses, for the total sum of NIS 30,000, with our clients retaining the right to sue for damages.

Contact real estate law experts:

Whether you wish to appeal a land endowment in Israel, evict an uncooperative tenant or squatter, purchase real estate or land in Israel as a foreign citizen, or conduct any of the many transactions which require the aid of an experienced attorney, our real estate experts in Tel Aviv and Jerusalem are at your service.

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