MS Omar Attorney

Attorneys and Conveyancers

Articles

Fiqh Of Renting Out Property

In order to understand the position of Imam Abu Hanifah (ra) on the issue of leasing of premises for a prohibited activity, two different situations must be distinguished:

The first situation is where the landlord expressly authorizes the letting for a prohibited activity. For example, the lease stipulates that the tenant shall use the premises for the sale of liquor/wine. In this case, all the jurists and mazaahib across the board are unanimous that the lease is null and void.The reason for this is that the subject matter of the lease is a prohibition or sinful transgression, and accordingly contrary to the express prohibition enshrined in the Quranic verse: Do not cooperate with one another in sin and transgression. Al Maidah 5:2 see Mugni of Ibn Qudamah vol4 p306.

The second situation covers the case where the landlord leases the premises for a permissible activity. The tenant however voluntarily and without the consent of the landlord uses the premises for a prohibited activity. Such conduct of the tenant is a new independent cause which breaks the chain of causation and should not be attributed to the landlord; and because the intention of the landlord was not to let the premises for a prohibited activity. It is only the second situation, which gave rise to a difference of opinion in the Hanafi school between Abu Hanifah, on the one hand, and Abu Yusuf and Imam Muhammad, on the other. The latter still held that the lease was void and the rental impermissible. See Al Mabsut Saraksi vol 16. Against this background, the fatwas of the Indo Pak scholars must be considered in context. They deal with the second situation referred to above, where the landlord does not authorize the letting and use of his premises for a prohibited haraam activity.

On the contrary, as stated above, the act of the tenant is an independent one, not sanctioned by the lease contract, which breaks the chain of causation. As was stated by Allama Zafar Ahmed. Thanvi (ra) Imam Abu Hanifah (ra) only permitted a causative route to halal sources, that enabled an escape from haram conduct(and not vice versa) see ila al Sunan vol 14 p172.

Our Testimonials

I personally know the honourable Shaykh Mahomed Shoaib Omar for over thirty years. I found him to be an ardent seeker of knowledge, quick of mind &  constantly devoted to the study of the books of fiqh &  has written himself a number of papers. He has been amongst the foremost participants in drafting the Muslim Personal Law for S.Africa, so that it may be enforced there; and the majority of local Ulama have endorsed this.

~ Mufti Taqi Uthmani

Contact Us

M.S OMAR & ASSOCIATES

Attorneys and Conveyancers
Suite 1603, 16th Floor
Nedbank House
30 Ingcuce Street
(formerly Albert Street)
Durban, South Africa

Tel (031) 306 3282