The Ottoman Land Code’s Three-Year Rule, and What It Does Not Say

The Ottoman Land Code of 1858, promulgated by the Ottoman Empire on 7 Ramazan 1274 and still the foundation of land tenure law applied in the West Bank, provides at Article 68 that arable land left uncultivated for three successive years without a valid excuse “becomes the right of Tapu”. It does not provide that the land reverts to the state. The former possessor keeps first claim and may have it transferred back to him on payment, and only if he declines does it pass by auction to another holder. The Ottoman state published no English text of the Code, so every wording below is a named translator’s, and the military order later applied over it is an Israeli military commander’s enactment published by that authority in its own gazette.

Figure	What it counts	Who published it	Period
3 successive years	Period of non-cultivation after which arable land becomes subject to the right of Tapu, under Article 68	Ottoman Empire, Land Code	Promulgated 7 Ramazan 1274, 21 April 1858
10 years	Period of undisturbed possession that proves a prescriptive right against the state, under Article 78	Ottoman Empire, Land Code	Same instrument
5	Classes of land the Code establishes at Article 1	Ottoman Empire, Land Code	Same instrument
About a mile and a half	Distance from an inhabited place beyond which land may be classed as mevat, under Article 6	Ottoman Empire, Land Code	Same instrument
8	Articles in Military Order 59, which created the Custodian of Government Property	Commander of IDF Forces in the West Bank Area	Signed 31 July 1967, in force from 7 July 1967
7 June 1967	The determining day by which Military Order 59 defines Government Property	Commander of IDF Forces in the West Bank Area	Military Order 59, Article 1

What are the five classes of land?

Article 1 sets them out, and every later argument about land status in this region runs through them. In the 1892 English translation: “Land in Turkey is divided into five classes: i. Arazi Memluke. Lands held in fee simple, freehold lands. ii. Arazi Mirie. Crown lands, belonging to the state exchequer. iii. Arazi Mevkufe. Lands possessed in mortmain, but tenanted by a kind of copyhold. iv. Arazi Metruke. Lands abandoned without cultivation or ostensible owner. v. Arazi Mevat. Dead lands, uncultivated and unappropriated.”

What does Article 68 actually provide?

That the land becomes subject to the right of Tapu, which is a different legal event from reverting to the state. The 1892 English text reads: “If the owner of any arable land does not cultivate it himself or cause it to be cultivated by another by lending or letting it, but allows it to lie fallow for three successive years without having proved any valid excuse … such land, whether the owner be in the place where the land is or at a distance travelling, becomes the right of Tapu. If the former owner wishes it to be transferred to him again it may be transferred to him for its equivalent value (Bedel Misl). If he does not wish it, then it is transferred by auction to the candidate.”

The article also names the valid excuses: resting the soil for one or two years, or longer where the locality requires; leaving flooded land fallow until it recovers; and being a prisoner of war.

Which article carries the three-year rule?

Article 68, and none of the three articles the rule is usually attributed to.

Article	What it provides	Period it names
6	Defines mevat, dead land, by distance from an inhabited place	None
68	Arable land left fallow becomes subject to the right of Tapu	Three successive years
78	Undisturbed possession proves a prescriptive right against the state	Ten years, running in the holder’s favour
103	Mevat granted for reclamation and then not opened up is given to another	Three years, on different land

A citation that puts the miri non-cultivation period in Article 6, 78 or 103 has named the wrong provision, and a reader who opens the Code finds it immediately.

What does Article 78 provide, and which way does it run?

In the holder’s favour, against the state. The 1892 text reads: “If a person has possessed Arazi Mirie and Mevkufe for ten years without disturbance his prescriptive right (Hak Karar) becomes proved, and whether he has a title-deed or not such land cannot be looked upon as Mahlul, but a new Tapu Sened should be given to him gratis.”

It is the opposite direction of travel from Article 68, and the two are routinely merged into a single “rule” that exists in neither.

How does the Code define dead land?

By how far the human voice carries. Article 6 defines Arazi Mevat as “waste (Khali) land which is not in the possession of anybody, and, not having been left or assigned to the inhabitants, is distant from town or village so that the loud voice of a person from the extreme inhabited spot cannot be heard, that is about a mile and a half to the extreme inhabited spot, or a distance of about half an hour”.

Article 103 states the audible-voice test again without the quantified distance, so the mile and a half belongs to Article 6.

What did the military order of 1967 add?

A Custodian, and a definition keyed to a single date. The Commander of IDF Forces in the West Bank Area signed Military Order 59, the Order Concerning Government Property, on 31 July 1967, in force from 7 July 1967. The order is an enactment of the Israeli military authority itself, published by that authority in its own Collection of Proclamations, Orders and Appointments, and it runs to eight articles in Hebrew and Arabic. Its index lists nine later amendments.

• Article 1 fixes the determining day as 7 June 1967, and defines Government Property by who owned it on that day.
• Article 2 provides that the Custodian may take possession of Government Property and take any step he considers necessary to do so.
• Article 5 protects a transaction made in good faith between the Custodian and another person, even if the property is later shown not to have been Government Property.
• Article 8 names the order for the West Bank Area, the term in use at the time.

The 1967 text contains no declaration procedure, no objection window and no appeals committee. Those exist in Israeli practice, and they are not in these eight articles.

Where these figures come from

The Code text on this page is quoted from the 1892 English translation by F. Ongley, revised by Horace E. Miller. The Ottoman state issued no English version, so there is no official English text and every wording in circulation is somebody’s translation. A second standard English text, Fisher’s of 1919, renders several of these provisions differently, and where a wording is load-bearing the translation is named.

The two English texts disagree on what a former possessor pays to recover land under Article 68: Ongley gives “its equivalent value (Bedel Misl)” and Fisher gives “its tapou value”. The Code itself distinguishes the two, so the two renderings are not interchangeable. Article 103’s provision allowing a person who broke up mevat without permission to obtain a title deed on payment was abolished in Palestine in 1921 by the Mewat Land Ordinance, so a statement about what reclamation earned a cultivator carries a date. Military Order 59 has been amended nine times, so the 1967 text is not the text in force today. The Code is evidence of what the law said and never of what was done: it carries no acreage, no share of land registered and no count of holdings of any kind, and no such figure is stated on this page because no Israeli official body publishes one this page could cite.

Questions

What is the Ottoman Land Code?

The land law promulgated by the Ottoman Empire on 7 Ramazan 1274, rendered as 21 April 1858, which established the five-class land taxonomy still applied to land tenure questions in the West Bank.

What is the three-year rule?

Article 68 provides that arable land left uncultivated for three successive years without a valid excuse becomes subject to the right of Tapu.

Does uncultivated land become state land?

Not on the text. Article 68 says the land “becomes the right of Tapu”, and the former possessor may have it transferred back on payment. Only if he declines does it go by auction to another holder.

What counts as a valid excuse?

Article 68 names resting the soil for one or two years or longer where the locality requires, leaving flooded land fallow until it recovers, and being a prisoner of war.

What is mevat land?

Arazi Mevat, dead land: waste land in nobody’s possession, not assigned to the inhabitants, and lying beyond the distance a loud voice carries from the nearest inhabited place.

What does Article 78 do?

It runs the other way from Article 68. Ten years of undisturbed possession proves a prescriptive right, and the holder is to be given a new title deed gratis whether or not he had one.

Why do translations disagree?

Because they are independent renderings of a Turkish statute. On Article 68 they differ on what the former possessor pays: equivalent value in one, tapu value in the other.

What is Military Order 59?

The Order Concerning Government Property for the West Bank Area, signed 31 July 1967 by the Commander of IDF Forces there and in force from 7 July 1967, which created the Custodian of Government Property. It is the Israeli military authority’s own enactment, published in its own gazette.

Does Military Order 59 set out a declaration procedure?

Not in its 1967 text. Its eight articles define Government Property by ownership on 7 June 1967 and empower a Custodian to take possession, and they contain no declaration procedure, objection window or appeals committee.

Does the Code say how much land is affected?

No. It carries no acreage, share or count of any kind. It is a statute, and every quantity about land in this region belongs to whichever body measured it.

Sources

• Commander of IDF Forces in the West Bank Area, 1967. Military Order 59, Order Concerning Government Property. Signed 31 July 1967, in force from 7 July 1967; Collection of Proclamations, Orders and Appointments, booklet 5, page 162. idf.il. Official record (security legislation as enacted).
• Israeli Supreme Court sitting as High Court of Justice, 1979. HCJ 390/79 Dweikat v. Government of Israel (the Elon Moreh case). Judgment of 22 October 1979. Official record (court judgment).
• Ottoman Empire, 1858. The Ottoman Land Code of 7 Ramazan 1274. English translation of F. Ongley, revised by Horace E. Miller, London, William Clowes and Sons, 1892. Primary record (enacted legislation, unofficial translation).
• Prime Minister’s Office of Israel, 2005. Summary of the opinion concerning unauthorized outposts. gov.il. Official record (government-commissioned review).