Interceding in the Purchase of Property (Pre-emption)
Interceding in privately owned facilities and in that which it is not possible to divide of Real Estate
All praise is due to Allâh alone, and may blessings and peace be upon him whom there will be no Prophet after him-Muhammad -and upon his family and Companions. To proceed:
Based upon what was decided in the 7th session of the meeting Council of the Senior Scholars Board that was held in the city of At-Ta'if during the first half of the month of Sha'ban in the year 1395 AH, of bringing the issue of interceding in purchases of privately owned facilities into the scheduled activites of the 8th session, a study of the mentioned issue took place during the 8th session. This session was held during the first half of the month of Rabi'ul-Awwal in the city of Ar-Riyadh. Likewise, a study of the issue of interceding in the purchase of real estate that cannot be divided took place.
After the Permanent Committee for Scientific Researches and Religious Verdicts reviewed the prepared research concerning that, and after alternate opinions were given, and discussion among the members and the exchange of views took place, the majority of the Committee decided that interceding (by a partner or neighbor) in purchases is a confirmed practice specifically for a shared partnership, like in the ownership of a well, a road, a stream and so forth. Likewise, interceding in purchases is confirmed regarding real estate property that cannot be divided, like a house and a store that is small, and similar things. This is due to the generality of the evidences concerning that. This is also due to this being included under the subject of taking by intercession (i.e., pre-emption), which is a form of repelling harm from the partner regarding what is sold and the right of what is sold. This is also because the legislative texts concerning the legality of intercession (pre-emption) in purchases include that. From these texts is what At-Tirmithi recorded with his chain of narration back to Ibn 'Abbas that the Prophet said:
"The partner is an intercessor (concerning purchases), and intercession in purchases is (valid) in everything."
In another narration of At-Tahawi with his chain of narration back to Jabir bin 'Abdullah the Prophet decreed that intercession (of the partner or neighbor) in purchases was (valid) in everything. Al-Hafiz said: "Concerning the Hadith of Jabir, there is no harm in its narration." This is also due to what Imam Ahmad and the Four (i.e., Sunan compilers) recorded with their chains of narration back to Jabir bin 'Abdullah that the Messenger of Allâh saiid :
"The neighbor has the most right to the pre-emption (interceding with the option of buying neighboring property) of his neighbor He should wait for its exercise even if he (the neighbor) is not present, if the two properties have one road."
This is also due to what Al-Bukhari recorded in his Sahih, and Abu Dawud and At-Tirmithi both recorded it in their Sunans with their chain of narration back to Jabir bin 'Abdullah. He said: "The Messenger of Allâh decreed the right to buy the neighboring property (intercession of pre-emption) as applic- able to everything which is not divided, but when boundaries are fixed and separate roads made, there is no option of intercession." The point of proof in this is what Ibn Al-Qayyim mentioned in his book, A'lamul-Muwaqqi'in. He said: "Verily, the neighbor who shares with someone else (his neighbor) in some specific partnership, for example they have one shared road or they share in drinking water or a stream or something similar from the specifically shared properties, is not considered a partner in a complete partnership. Rather, he is a partner with his neighbor in some of the rights of his ownership. If their road is one (ie., they share it), then it does not have specific boundaries. Rather, some of it may be designated and some of it may not be, as boundaries being present at every place necessitates or means that the roads have been separated."
And success is from Allâh. May Allâh send blessings and peace upon Muhammad, his family and his Companions.
Source:
Fatawa Islamiyah, Vol. 3 Pages 442-443-444
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