and dispose over the property It must be beneficial in accordance with Hukm Syara. Example: He can dispose it by contract. No duration or time limit to enjoy the property unless, it is dispose or there is a change of ownership or the owner died and transferred to his heirs or successor. Not to compensate any damage or lost of his own property. Exception: killing an animal without good reason. He may be liable for ta'zir
Acquisition of Ownership a)Acquisition by Appropriation General Rule: Who revivifies mawat land acquired ownership thereof Uncultivated land which has no owner is the property of the state, the appropriation or repossession of it can only be effected with the authority of the state
b) Acquisition by Succession Testate and intestate are governed by Shariah and customary laws Egypt applied the Shariah law to all Lebanon equal between male and female Syria applicable to Muslims only - foreigners cannot succeed to real property c) Acquisition by Accession Another way of acquiring immovable properties 2 forms: Artificial and natural acquisition 1. Artificial the result of action by man. The owner of the original property acquires ownership over the property joined to it Bad faith to remove the property with indemnity Good faith cannot demand for removal of goods, unless paid adequate compensation. 2. Natural the result of action by water; when river water build up gradually and imperceptibly an alluvium which attaches itself to a riparian property Land uncovered by the sea belongs to the state d) Acquisition by Contract Transfer of movables and immovables can be acquired by contract
Surah al-Maidah 5 O ye who believe! Fulfill all your obligations. O you who believe! Squander not your wealth among yourselves in worthless dealings,but let there be trade by mutual consent.. Al- Quran 4:19)
Sunnah Prophet said: verily trade is based on mutual consent He also said: It is unlawful to take the property of a Muslim except by his consent Majallat al Ahkam Chapter 1, Section 1 (offer and Acceptance on sale)
Consent (Rida) contract in Islam generally does not require fix formality. What is required is consent by each parties. Based on Quranic injunctions (Surah 4:29) Hadith, Al amaalu binniya Acts are valid according to the intention. Contract does not transfer ownership of a real right on land. It gives the right to demand for the its registration e) Acquisition by pre-emption Conjunction, it refers to the land sold which is conjunction to the land of the pre-emptor
An opportunity that a person has, in a sale of immovable property to substitute himself in the place of he in certain cases Pre-emption belongs to usufructuary in the sale of all or part of bare property (ownership of a piece of property without the right to use and derive profit from that property) Shahih of Imam Muslim- Anyone who has a co-sharer in a house or date palm grove he should not sell it till he has the permission of his co-sharer but if he is willing to take it (buy it) he may pre-empt, but if he does not wist to take it he should leave it Right of pre-emption is a weak right if the condition are not strictly adhered to
Restrain freedom of contract Restrictions on the right of pre- emption 1. Sale in Public action 2. Sale between ascendant and descendants, spouses or relatives within 4 th deree or marriage relatives within second degree 3. Religious purposes
F) Acquisition by Possession (Hiyazah) Ownership can be acquired by uninterrupted possession Possession means material situation whereby a person exercises actual control No adverse possession if obtained through violence or other illegitimate acts of possession. Two ways for transfer of possession: It passes by operation of law (continuation of previous possession) Disposal concluded by the possessors the special successor acquired it through new possession) It ceases when possession he abandones the actual possession. Rights derived from right of ownership A) Tassaruf signifies the right to use or exploit, and dispose of miri land granted to individual by the state within limits that in the past become less and less, so much so that it has been assimilated to the right of ownership It cannot be left by will It devolves upon the heirs by virtue if intiqal or transmission b) Usufruct, User and Occupation Usufruct is a real right for use and exploitaion of a thing that belongs to another The right terminates with the death of usufructuary It is a real rights and can be motgaged c) Support (sathiyah or musatahah) It is the right of ownership on building or trees which is independent from the ownership of the land It can be created by agreement or prescription, that it can be sold and mortgaged and that it descends by inheritance or by will Ownership can merge Non-payment of rent owner can cancelled if rent was agreed
d) Hikr Special kind of lease creating a real right in the lessor and its duration is for longer period that of an ordinary lease Lease of waqf properties It can be concluded for reasons of necessity or expediency and with permission of judge ) Servitudes rights which limits the enjoyment of a property belonging to another owner, or a charge on property for the benefit other than the owner of the first property.