Ta'liya (building above another building)

Ta'liya comes from 'uluw, height. In the jurists' usage it is raising a building above another building. ¹

An owner may build up on his own wall as he likes; his neighbour may not stop him unless the harm is gross. Article 1198 of the Majalla says so. The neighbour's claim that the new storey blocks wind and sun is not gross harm. ^{1 2}

The Malikis allow selling a measured portion of air above a built or unbuilt site, with the lower and the upper building described. The Shafiis allow selling the right to build or to the upper storey for a known price, and the buyer may still use what is not building, such as a place to rest. The Hanbalis allow it even before the house is built, if the two storeys are described. The Hanafis forbid it, since the right is not property but attached to air. ^{1 2} The Hanafis do allow selling the upper storey before it falls; if it falls before delivery the sale is void. ²

The Hanafis do not compel the lower owner to rebuild a wall that fell without his act; if he demolished it, he is compelled, since he took away the upper owner's right of standing. An upper owner who rebuilds the lower storey may keep it until repaid. ^{2 3} The Malikis order the lower owner to repair a decaying lower storey, and sell it to one who will repair it if he refuses. ³ The Shafiis hold that the upper owner cannot compel the lower owner to rebuild a fallen lower wall; whether the lower owner can compel the upper owner is disputed, and the rebuilder recovers costs according to permission. ^{3 4} The Hanbalis report two narrations on whether a refusing owner can be compelled. ⁴

The Shafiis, Malikis and Hanbalis allow making the upper or the lower storey a mosque without the other, since both are separate things that can be endowed. The mosque must be fully given to God, so it is not a mosque while a person's right remains in it. ⁴ For Abu Hanifa a lower storey may be a mosque with a dwelling above, but not the reverse; a report from Muhammad gives the reverse, and Abu Yusuf allowed both. ⁷

The Hanafis, Shafiis and Hanbalis do not allow an owner above or below to open a window onto the other without consent. The two disciples of Abu Hanifa allow any opening that does no harm, and forbid one that harms. The Malikis order a new opening that overlooks the neighbour to be closed, do not close an old one, and hold that a right is lost after ten years of silence. ⁷

There is no dispute that non-Muslims may not build higher than their Muslim neighbours, on the report that Islam is exalted and nothing is exalted above it, which Ibn Hajar judged sound. Some Hanafis allow height for guarding against thieves. ⁵ On building at the same level, the Malikis and Hanbalis, and some Hanafis, allow it; some Hanafis and the sounder Shafii view forbid it, to keep them distinct. ⁵ A dhimmi who buys a higher house next to a Muslim's lower one may live in it, but may not overlook the Muslim house. ⁵ If he builds higher over a plot not adjoining a Muslim's, the Hanbalis and the accepted Hanafi and Maliki view allow it, while the Shafiis have two views. ⁶