Heirs’ disposal of real estate without each others’ permission
4-2-2014 | IslamWeb
Question:
My father left two pieces of land to us: four sons and two daughters, and one of them is married. Our mother is still alive, praise be to Allaah. My brothers and I built the first floor jointly, and a brother built the second floor, I built the third, and my eldest sister built the fourth floor. We live in Cairo and she is married and lives in Ismaa‘eeliyah. The problem is that my eldest brother is insisting on giving our sister the value of the flat that she had built, saying that she is not entitled to build on the whole area of the land. Otherwise, she must bear with us the costs of the house foundations, but I suggested that we leave the flat to my sister without paying anything in return for her giving up her share in the other piece of land. The area of the piece on which the building was established is 95 m and the other is 150 m, noting that the small piece is in a better location. What is the correct course of action according to Sharee‘ah?
May Allaah Reward you.
Answer:
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad, sallallaahu ‘alayhi wa sallam, is His Slave and Messenger.
The predominant opinion of scholars is that anyone who builds on another person's land with his permission, or builds on a land that he shares with another person, is entitled to the value of his building only (i.e. not including the value of the land itself), for he has neither committed aggression nor usurpation. Consequently, none of these brothers and sisters, who built flats on their land, is allowed to drive out another from the block, especially that all of them did the same thing.
The solution to this problem is that you should either give your sister a satisfying sum in return for her share of the land, or to accept her as a partner in the block according to her share in the land and the value of the flat.
However, the eldest brother is right when he said that the elder sister was not entitled to build over the whole area. However, she, too, may say the same thing, for none of these partners has the right to build over the whole area of the land. None of them is even permitted to build over a part of it without the permission of his partners. This is not confined to the sister only, so none of them should have done so without the permission of his partners.
Reconciliation and reciprocal tolerance are the best solution for your problem. Otherwise, you should submit your case to Sharee‘ah courts of your country.
Allaah Knows best.