Jurisprudential Rulings and Issues in the Light of the Quran and Hadith, Book of Sales: Volume 02: Page 95
Question
Peace be upon you and the mercy of Allah and His blessings.
Answer with the Help of the Bestower, Provided the Question is Correct
And peace be upon you and the mercy of Allah and His blessings!
الحمد لله، والصلاة والسلام علىٰ رسول الله، أما بعد!
The esteemed jurists have detailed the rulings related to neighbors and pathways in their jurisprudential texts, as this issue is of great importance and relates to common needs.
It has often been observed that various types of issues and complications arise among neighbors. Timely resolution of these matters is essential to prevent them from escalating into enmity and disputes. In this regard, several important principles and regulations are outlined below:
① Mediating with Justice and Fairness
◈ Reconciliation should be conducted while keeping fairness in mind between the two parties.
② The Matter of Water Flowing Through
◈ If a person needs to channel water along the edge or surface of their neighbor's land, they may agree on compensation by mutual consent.
◈ If this compensation is in exchange for a benefit and the ownership of the land remains intact, it will be considered under the ruling of "Ijarah".
◈ And if ownership is transferred, it will be regarded as a sale.
③ The Need for Passage
◈ If someone requires a path through their neighbor's land, they can obtain it either through reconciliation or by purchasing the land as needed.
◈ It is not appropriate for the owner to prevent their neighbor from accessing the path in a state of necessity or to take undue advantage of their necessity.
④ The Matter of Tree Branches
◈ If a tree's branch extends into a neighbor's land or airspace, it is obligatory for the owner of the tree to cut it or redirect it towards his own property.
◈ If he refuses, the landowner may remove it with minimal damage, as this is akin to encroachment.
◈ However, if both parties reach an agreement, whether with compensation or through the sharing of fruits, this is also permissible.
⑤ The Ruling on Tree Roots
◈ If a tree's root extends into a neighbor's land, the ruling is the same as that which has been stated regarding branches.
⑥ Making Harmful Changes is Prohibited
◈ It is not permissible to make changes in one's property that would harm the neighbor, such as:
✔ Building a bathhouse
✔ Installing an oven
✔ Establishing a coffee house or factory
✔ Opening a window or skylight that allows visibility into the neighbor's house
⑦ Rulings on Shared Walls
◈ It is not permissible to open a window or drive a large nail into a shared wall without permission.
◈ It is not correct to place unnecessary burdens on a shared or neighboring wall.
◈ If a beam needs to be placed for roofing and the wall can bear the weight, the neighbor should not be prevented.
The Messenger of Allah ﷺ said:
"لاَ يَمْنَعْ جارٌ جارَهُ أَنْ يغْرِزَ خَشَبَةً في جِدارِهِ"
"A neighbor should not prevent his neighbor from placing wood in his wall."
Reference: Sahih al-Bukhari, Al-Mazalim, Chapter: A neighbor should not prevent his neighbor from driving a piece of wood into his wall, Hadith 2463, and Sahih Muslim, Al-Musaqat, Chapter: Driving a piece of wood into the wall of a neighbor, Hadith 1609
Sayyidina Abu Hurairah رضي الله تعالى عنه used to say after narrating this hadith:
"I am astonished that I see you avoiding (this command). By Allah! I will surely strike it between your shoulders."
Reference: Sahih al-Bukhari, Al-Mazalim, Chapter: A neighbor should not prevent his neighbor from driving a piece of wood into his wall, Hadith 2463, and Sahih Muslim, Al-Musaqat, Chapter: Driving a piece of wood into the wall of a neighbor, Hadith 1609
From this, it is understood that preventing a neighbor from placing wood is not correct, and if there is an obstruction, the ruler can compel him.
① Keeping the Path Clear
◈ It is not permissible to obstruct pathways for Muslims.
◈ Removing harmful objects is part of faith.
② Narrowing the Path is Prohibited
◈ It is not permissible to make changes to one's property that would narrow the pathway, such as adding a roof or constructing a platform.
③ Placing Obstacles on the Path is Prohibited
◈ Tying animals
◈ Parking vehicles
◈ All these cause accidents and congestion.
Shaykh al-Islam Ibn Taymiyyah رحمه الله states:
"It is not permissible for a person to extend any part of their building towards the pathway of Muslims, even to the extent of cementing a wall, unless the wall is set back within its limits by the thickness of the cement."
Reference: Majmu' al-Fatawa 30/10
④ Harmful Actions on the Path are Prohibited
◈ Planting trees
◈ Constructing buildings
◈ Digging holes
◈ Storing fuel
◈ Slaughtering animals
◈ Disposing of garbage, ashes, or filth
It is the responsibility of municipal authorities to prevent such individuals and to punish those who do not desist.
Allah تعالى says:
﴿وَالَّذينَ يُؤذونَ المُؤمِنينَ وَالمُؤمِنـٰتِ بِغَيرِ مَا اكتَسَبوا فَقَدِ احتَمَلوا بُهتـٰنًا وَإِثمًا مُبينًا ﴿٥٨﴾
"Those who harm believing men and believing women without any wrongdoing they have committed, bear upon themselves a slander and a manifest sin."
Reference: Al-Ahzab 33/58
The Prophet ﷺ said:
"مَنْ سَلِمَ الْمُسْلِمُونَ مِنْ لِسَانِهِ وَيَدِهِ"
"A Muslim is one from whose tongue and hand other Muslims are safe."
Reference: Sahih al-Bukhari, Al-Iman, Chapter: A Muslim is one from whom the Muslims are safe from his tongue and hand, Hadith 10
He also said:
"الْإِيمَانُ بِضْعٌ وَسَبْعُونَ أَوْ بِضْعٌ وَسِتُّونَ شُعْبَةً, فَأَفْضَلُهَا قَوْلُ: لَا إِلَهَ إِلَّا اللَّهُ, وَأَدْنَاهَا إِمَاطَةُ الْأَذَى عَنْ الطَّرِيقِ, وَالْحَيَاءُ شُعْبَةٌ مِنْ الْإِيمَانِ"
"Faith has over seventy branches; the best of which is the declaration that there is no deity but Allah, and the least of which is removing something harmful from the road, and modesty is also a branch of faith."
Reference: Sahih Muslim, Al-Iman, Chapter: The Number of Branches of Faith... Hadith 35
The Linguistic Meaning of Shufa'
◈ The term Shufa' is derived from the word "Shaf'" which means "pair."
◈ Since the one who exercises Shufa' incorporates the singular property into his ownership, it is called Shufa'.
The Legitimacy of Shufa'
◈ Shufa' is established through authentic Sunnah.
◈ Through it, the Shari'ah has closed the door to the corruption arising from partnership.
Allamah Ibn Qayyim رحمه الله states:
"One of the laws based on justice and fairness in Shari'ah is Shufa... Shari'ah has eliminated harm either through division or through Shufa... A partner has more right than a stranger... Shufa is the best form of justice and is in accordance with human nature."
Reference: A'lam al-Muwaqqi'in 2/123
Definition of Shufa (Terminological)
◈ If one partner sells his share, the other partner has the right to acquire that share at the same price.
The decision of Rasulullah ﷺ is:
"قضى رسول الله صلى الله عليه وسلم بالشفعة في كل ما لم يقسم، فإذا وقعت الحدود وصرفت الطرق فلا شفعة "
"In everything that has not been divided, there is Shufa, and when the boundaries are set and the paths are separated, then there is no Shufa."
Reference: Sahih al-Bukhari, Shufa, Chapter on Shufa in what has not been divided... Hadith 2257 and Musnad Ahmad 3/296,399
He also stated:
"لَا يَحِلُّ لَهُ أَنْ يَبِيعَ حَتَّى يُؤْذِنَ شَرِيكَهُ "
"It is not permissible for anyone to sell without informing his partner."
Reference: Sahih Muslim, Al-Musaqat, Chapter on Shufa, Hadith 1608
Ibn Qayyim رحمه الله states:
"If the partner was informed and he refused, then he cannot demand later..."
Reference: A'lam al-Muwaqqi'in 2/123
Prohibition of Deception
Imam Ahmad رحمه الله said:
"It is forbidden to devise a means to nullify the right of Shafaa for any Muslim."
Reference: I'lam al-Muwaqqi'in 3/260
The Messenger of Allah ﷺ said:
"لا تَرْتَكِبُوا مَا ارْتَكَبَتِ الْيَهُودُ , فَتَسْتَحِلُّوا مَحَارِمَ اللَّهِ بِأَدْنَى الْحِيَلِ "
"Do not make Allah's forbidden things lawful through tricks like the Jews."
Reference: Tafsir Ibn Kathir Al-A'raf 7/163
Shaykh al-Islam Ibn Taymiyyah رحمه الله said:
"Changing words does not change reality; devising a means to terminate the right of Shafaa is unlawful."
Reference: Majmu' al-Fatawa of Shaykh al-Islam Ibn Taymiyyah: 30/386
When does Shafaa remain?
◈ Shafaa will apply in undivided land.
◈ If boundaries are set but the path is common, Shafaa will still remain.
Hadith:
"فإذا وقعت الحدود وصرفت الطرق فلا شفعة "
Reference: Sahih al-Bukhari Al-Shafaa, Chapter on Shafaa in what has not been divided... Hadith 2257
Imam Ahmad, Ibn Qayyim, and Taqi al-Din رحمه الله have deemed this to be the preferred opinion.
Reference: I'lam al-Muwaqqi'in: 2/132
Other Issues of Shafaa
① If the claimant is aware of the sale, he should demand it immediately.
② If he is unaware, the right will remain valid even after many years.
③ According to Ibn Hubayrah رحمه الله: "The scholars agree that if the rightful owner is absent, he can claim upon his return."
④ A partner has a right proportional to his share.
⑤ If one partner relinquishes, the other may take the entire property or leave it.
ھذا ما عندی والله اعلم بالصواب
