Jurisprudential Challenges of Urban Ownership, Based on Article 38 of the Iranian Civil Code

According to Article 38 of the Iranian Civil Code, which is based on the maxim of “People have domination over their properties” and the maxim of “Whoever owns a land, owns it to the heights of the sky, and the depths of the earth,” the owner has the right to any occupancy of his/her property. Following domination over the property, dominating the depths of the earth and sky is also achieved for the person. However, today, practically, the absoluteness of property rights faces challenges in the light of scientific advances over the course of time and the requirements of urbanization. By examining the requirements and challenges of urban ownership, this study, which has used the descriptive-analytical method, concluded that under the influence of the demands of time and place and the need to meet the growing needs of society, the absoluteness of Article 38 of the Iranian Civil Code must be limited due to the maxim of ‘LāḌarar’ and observance of the public interest. Therefore, a citizen will not have the right to occupancy without obtaining the necessary permits from relevant organizations. Moreover, the final part of this article, due to the different laws restricting the owner’s authority, requires the exception of the majority, which is disapproved by the rules of the science of Uṣūl. Therefore, this article needs to be reviewed and changed.