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Ownership

Full ownership right to control


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.