Legal Evironment of

Business

Hind Azerkan
Yasmine El Younsi
Dalal Hilali

Professor Sidi Abdellah Belamhidi

Spring 2012

Table of Contents
PART I:................................................................................................................ 2
A.
B.
C.
D.

The profession of a notaire .............................................................................................2

The profession of a lawyer .................................................................................................2
The profession of Adoul..................................................................................................3
The difference between a notaire, a lawyer, and Adouls .............................................4

PART II: .............................................................................................................. 5

A.
Real property conservatory system in Morocco .................................................................5
B.
Registered versus non-registered properties.......................................................................6
D. The registration of property ...................................................................................................7
E.
Property Registration procedure........................................................................................8

PART III: ............................................................................................................. 9

Dealing with the issue ...................................................................................................................9

First case ................................................................................................................................. 9

Second case ........................................................................................................................... 10
References .......................................................................................................... 12

PART I:
A. The profession of a notaire
In Morocco, the profession of a notaire is regulated by the Dahir of May 4th 1925. This
profession is well defined in a law that contains 8 titles and 46 articles; the law also states the
condition that should be met so that a person can have the title of Notaire. A notaire is a public
official, appointed by the ministry of justice, who is in charge of providing authenticity to acts
and particular contracts. He/she is personally responsible to exercise his/her functions
independently in the framework of a liberal profession. Thus, we can claim that the notaire has
two roles. As a public official, his/she offers to clients security in the contractual dealings. As a
liberal profession, he/she engages with clients into personalized relationships and assures the
efficient functioning of his/her office and a diversification of the different services offered. For
instance, the notaire clearly identifies the terms of the contract between two parties and states
their respective obligations. He/she is an expert who offers his/her services to people and
businesses such as preparation of contracts and agreements, issues related to heritage, counseling
to companies, etc. In case of transfer of ownership between two parties the Notaire has to
check the origin of the property (Milek, chiaa, Houbous), if there are other owners of this
property, and if theres any hold or outstanding debt on that property. He/she must be a neutral
mediator between the two parties, and can help them find a solution if they do not reach an
agreement.
B. The profession of a lawyer
A lawyer or an attorney is appointed by the law No. 1-93-162. He/she is a person who represents
clients in an ethical way in front of the law. The lawyer can gather information that will be used
as evidence and proof to defend his/her client and must still respect the law when accomplishing

his/her duties. Trust and confidentiality are two critical aspects in the relationship between the
lawyer and his/her client. The lawyer is also held responsible to inform the client informed
constantly by the progression of the case.
The lawyer is also in charge of advising contractors on all the laws that they need in order to
write the contract and may eventually advise them to turn the contract into their favor. The
lawyer is also in charge of helping the contractor to provide a document to the notaire that
follows all the regulations of the law so that it can be authenticated.
C. The profession of Adoul
The definition of this profession is a bit complex because it has been shown that it combines both
the role of a notaire and a legal representative of the judges. The profession of Adoul, also
called notaire traditional is regulated by the dahir of the 6th of May and modified on the 26th of
April 1983. It stipulates that Adoul is considered as an auxiliary of the Taouqit justice. Like
the profession of the notaire, the profession of the Adoul is considered as a private practice,
and requires various steps for a person to have the right to practice it. In fact, to be an Adoul, a
person has to graduate from either the university of religious case law in Tetouan (facult de
jurisprudence de Tetouan), or from any university in Morocco that is specialized in the field of
juridical and Islamic science. The law also stipulates that the candidate should have a good
morality to be selected for the practice of the profession. The candidates are nominated by the
minister of Justice on the recommendation of the Cadi.

D. The difference between a notaire, a lawyer, and Adouls

In Morocco, we have more almost 7000 lawyers, 300 notaires, and 5000 Adouls. Both
notaries and lawyers deal with legal issues; however, their jobs are different. As the opposite of
the job of the lawyer, the notaire is only responsible for the accordance of the formalities. For
example, if one of the parties (buyer or seller) wants to have some legal advice, they have to hire
a lawyer who will help the parties prepare their documents and make them legally ready to be
used by the notaire. Furthermore, the notaire do not represent clients in the court; which is
the duty of the lawyer.
Both must hold a Bachelor Degree License in law but the notaire has to pass two additional
exams (a two-year exam of premier clerc and a two-year exam of profession nomination and
pledge). Moreover, the lawyer must work with a practicing attorney while the notaire must do
a professional training.
There are also some differences between a notaire and Adouls. The main difference is that in
the case of any conflict between contractors, the Adoul has the right to play the role of the judge
and thus he could eventually decide on the party that is able to win. Additionally, the Adoul
deal mostly with the properties that are not registered in real property conservatory We can add
to all this that notaries rely, wrongly or rightly, the secular nature of their business - which does
not prejudge their personal beliefs, while that of adouls remains marked by the religious training
they have received.

PART II:
A. Real property conservatory system in Morocco
Before 1913, buying and selling properties in Morocco was one among the specialties of
Adoul. The 12th August 1913 witnessed the creation of a new Dahir that allowed Moroccan
citizens to be able to register their properties in real property conservatory, what we call in
Morocco la conservation foncire. In 1915 the real estate conservatory was established in
Casablanca. The new statement made it possible to register properties in the owners names on a
real estate book; this registration is a kind of protection of the owners property. Besides, the
value of the property increases and the owner can even take a loan against it. We note also that
this registration facilitates the transfer of ownership and makes it easier.
In Morocco, for a property (whether it is a house, a land, a farm, or a condominium) to be legally
recognized under the ownership of person it has to be recorded in the Land register in the real
property conservatory (la conservation foncire). In other words, a certain personal propriety
wouldnt be absolutely recognized by the law as being under someones right if it is not
registered in real property conservatory. The fact that property being registered in real property
conservatory gives the owner a permanent and unassailable title deed and protects him from any
potential claim over his propriety from another party. The owner will also have a better access to
loans, and his real-estate transactions will be done easily. Besides, when the property registered,
the Notaire could assist the transfer in case the owner wants to sell it. This is a big advantage
because a property transfer in the presence of Notaire has many advantages that we will talk
about them later.

B. Registered versus non-registered properties

The duality of the real property system is illustrated by the fact that real property is subject to
completely different regimes depending on whether or not the property is registered. Indeed, a
non-registered land is listed under the Islamic and traditional law. However, a registered land is
placed under the conservatory system of real property.
Once the actual property system has been defined, it is important to discuss the law for the
different types of land.
C. Property Laws
Real estate is structured by statutes, some of which do not provide the stability and guarantees
which are necessary to undertake investments in the long term:
- The Melk, largely predominant (76% of the Usable Agricultural Area UAA ) estimated at 7
million hectares, can beneficially be owned by one individual, as it can belong to several
individuals. However, it is confronted with problems of fragmentation, and shortcomings of the
traditional system of establishing accts of right of ownership. This ownership is based on a
pacifist, public and continuous possession of the land during 10 years. The document that proves
the ownership is called a Moulkia given by the Adoul based on the testimonies of two
Adouls and 12 witnesses that confirm the possession of the specific land.
- The properties owned by the state, legal person of public law, classified in public domain
(streets, beaches, ports, etc.), Private (acquisitions from friendly expropriation, confiscation, etc.)
and Forest (forests, dunes, etc.), represent 270,000 hectares (3% of Useful Agricultural SurfaceSAU);
- The common land (about 1.5 million hectares, 17% of SAU) owned fully by the ethnic focused
community and Guich lands (about 240,000 acres, 3% of SAU ).

- Habous Land that are capital assets of the Muslim founder and have benefits designated for
special categories of beneficiaries. In general, Habous were created for the benefit of religious
organizations or public institutions (i.e schools, mosques, shrines, orphanages, etc.) They are
characterized by several types (public, family and zaouia) and are subject, in general, to short
rentals. They represent 59,000 hectares, or less than 1% of the SAU. These statutes, despite their
diversities and complexities may be subject to scheme land registration.
All types of land other than the Melk are under the official register in which a plan is defined,
the situation of the building or land There is a written document stating the rights that come
with each piece of land.
More specifically, each title deed contains:
- The description of the building with all its limits, tenants explaining its nature and what it
contains.
- The name of the owner(s) and their respective shares in the building
- The rights that come with the land
D. The registration of property
Contains information on the property such as the area, the name of the owners, and the previous
transfers if this entity
For the time being only 60% of Moroccan properties are registered, and the state is currently
doing some efforts such as making people aware of the benefits of registering their properties
and making the process easy.
Before we talk about the procedures to be followed in the registration of a property, we should
mention who has the right to ask for a property registration:

The owner of a house, condominium, or a land

The holders of real rights, those who do not own a building or an apartment, but have
certain rights related to a property

Beneficiaries of easements

E. Property Registration procedure

Registering a property procedure consists of 6 steps:
1.

Application of registration: Get the application form for land registration, fill carefully
the file at the land and attach your property deed and any other supporting documents

2.

Payment of registration fees: the property registration procedure is initiated only after
payment of duties.

3.

Advertising: The purpose of informing the public that the registration of a property was
requested by a person who claims ownership in order to allow prospective holders of real
rights to manifest

4.

Boundaries: it is the most important phase of the registration procedure. It is a

topographic operation, an act of publicity and a legal investigation.

5.

Notice of closure Boundaries: After the Registrar le conservateur receives the report
and the border plan; he publishes a notice of closure of demarcation in the official
bulletin.

6.

Registration: In case theres no objections or after they regulate for the favor of the
requiring, the Registrar (le conservateur) establishes a registration and title deeds on
behalf of the owner.

PART III:
Dealing with the issue
We are notaires in Casablanca and one day a group of foreign investors came to our office.
They have just found a piece of land to buy (one hectare). They agreed with the owners about the
price of 3million DHS. They came with the owners and they want us to help them write the sale
contract and assist them until the ownership passes from the owners to them.
As notaires the first thing we have to ask the owner if the property, which is in this case the
land, is registered in la conservation foncire and this answer can lead us to 2 cases which are:
First case: Land is not registered in la conservation foncire
If the land is not registered in la conservation foncire, we cannot help them. They should go
to Adoul, and he is going to take care of that and write an agreement between the two parties.
However, we will have to inform the investors about the risks of buying a property nonregistered in la conservation foncire. For instance, the land might have more than one owner,
or it might have some legal problems. However, if the investors still want to purchase the land
then one of two actions should be taken to preserve the buyers rights. The first choice is that
they can buy the land by signing an agreement in Adouls office; then go immediately to la
conservation foncire to register the land following the steps previously stated. The second
choice, is to ask the seller to register the land in la conservation foncire himself, and by so
doing they would eliminate any risks. However, this might increase the sales price to 3 million
Dirhams.

Second case: The land is registered in la conservation foncire

If the land is registered in la conservation foncire then we can take care of the sale contract.
The process of getting the sale done might take a long time and theres the risk that the land price
will increase or that the seller will find other buyers. Besides, the investors may want to take a
loan to pay for this land. Thats why it is advisable that the buyer and the seller sign a precontract which is so called provisional sales agreement (une promesse de vente or une
compromise de vente). There are different types of the provisional type agreements:
1.

Promesse unilatrale de vente

The seller is engaged in selling the land within a specific time horizon; however, the seller is not
obliged to buy it, but he still needs to pay an allowance (une indemnit) that is refunded if the
conditions of the contact are not met.
2.

Promesse bilatrale or compromise de vente

Both the seller and the buyer are engaged. In this type of pre-contact the buyer pays an advance,
a portion of the price agreed on to the seller.
Under either forms, the pre-contract is a very important document because it states the conditions
and the terms of sale. The investors could sign this contract with the seller with no intermediary,
but this is a complicated processes and it includes some risks. Thus, it is advisable that they ask
for our help in signing this kind of contract. If they choose to sign it in our office, then we have
to make some verification about the buyer and the seller such as their identity and their marital
status. We should also insure that the seller is the real and the only owner of the land, and
whether he has the right to engage in the sale on his own.
The Pre-contract is a written document and it includes the maximum amount of information, for
example the address of the land, its dimension (which is 1 Hectar), the civil status of the buyer

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and the seller, the origin of the property (the previous sale contract, the name of the previous
owner, and information about the notaire who authenticated the contract), the date on which
the sale contract will be signed and under what conditions, and we should examine les titres de
proprit du vendeur.After writing the pre-contract and getting it signed by both parties we
deposit it at la conservation foncire .We also have the duty to inform the buyer of the fees of
the contract, the notaire, the registration, and la conservation foncire, as well as the taxes
related to the purchase.
Afterwards, we start gathering all necessary legal and administrative documents and tax forms
and make all needed verifications. We also ensure the payment of the amounts necessary to carry
out the act (price, loan costs and professional fees). In fact, this process might take several
months.
Finally, we will call the two parties to sign the contract. The contact should include all details
about the land dimensions, which is 1 hectar, the price agreed upon, which is 3 million DH, the
location of the land, and some information about the seller as well as the terms of the sale. And
finally, we should deposit all necessary documents at la conservation foncire and register the
legal situation of the land, which is a process called la publicite foncire. Finally, we keep the
original copy of the contract and we give authentic copies to both the buyer and the seller.

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References
http://droit.francophonie.org/df-web/publication.do?publicationId=2702
Ministry of Justice
http://www.marocainsdumonde.gov.ma/infopratiques/conservation-fonci%C3%A8re.aspx

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