Immovable property, real estate (aqar) and its legal effects

العَقار

In the lexicon, aqar is anything with a fixed base and a settled place, such as land, a house, an estate or palms; as a term it is what cannot be moved from one place to another, such as land and a house, while movables are what can be moved ¹ ². The distinction has effects: pre-emption applies to real estate and, by the majority, not to movables sold on their own; easements attach to real estate; the rules of sale for a minor's or a bankrupt's property differ; and endowments of real estate are valid by agreement ² ³ ⁴. Prayer on usurped land is valid according to the majority, though sinful, and invalid on the preferred Hanbali view ⁵ ⁶. There is no zakat on needs such as a home, and by the majority none on rented property; a Hanbali view requires it ⁷ ⁸. An owner may sell his real estate in full or a share, subject to rules on harm to co-owners, the sale of a guardian over a minor's property, and possession by delivery; the schools differ on the fruits of a defective sale returned and on planting or building on land whose title fails or which is leased ⁸ ⁹ ¹⁰ ¹¹ ¹². Every item that may be sold may be mortgaged, and the rules of usurpation apply to real estate according to the majority ¹².

Summary

In the lexicon, aqar is anything with a fixed base and a settled place, such as land, a house, an estate or palms; as a term it is what cannot be moved from one place to another ¹.

Immovables and movables

Movables are what can be moved from place to place; the Malikis require that they can be moved without losing their form ².

Effects of the distinction

Pre-emption applies to real estate and, by the majority, not to movables sold on their own; easements attach to real estate; and the rules for selling a minor's or a bankrupt's property differ by kind ² ³.

Prayer on usurped land

The majority hold that prayer on usurped land is valid though sinful; the preferred Hanbali view holds it invalid ⁵ ⁶.

Zakat

No zakat is due on needs such as a home. By the majority there is none on rented property; some Hanbalis, including Ibn Aqil, hold that it is due ⁷ ⁸.

Sale, mortgage and endowment

An owner may sell real estate in full or a shared part, subject to conditions; everything that may be sold may be mortgaged; and endowment of real estate is valid by agreement ⁷ ¹² ⁴.

Where to look further

Pre-emption is treated under «shufa», endowment under «waqf», and usurpation under «ghasb» ¹².

Sources

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11693

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11694

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11695

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11704

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11696

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11697

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11698

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11699

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11700

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11701

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11702

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11703

Land taken by force in war ('anwa) and its legal status

In the lexicon, 'anwa is overpowering and seizure by force; as a term among the jurists it is what is taken from land in war by force and conquest, as against land taken by treaty. The jurists agree that movables taken in war are part of the spoils; they differ on land taken by force. The Hanafis hold that the imam chooses between dividing it and leaving its people on it for a land tax (kharaj), so that the army does not own it. The Malikis hold, in the preferred view, that it becomes an endowment for the Muslims. The Shafi'is hold that a fifth goes to the purposes named in the Qur'anic verse on spoils and the rest is divided among the fighters, unless they give it up for the public interest. The details are treated under «ghanima».