Hikr (long lease of waqf land)

الحكر

Hikr lexically means injustice, narrowness and hardship; its technical uses are three: the rent fixed on a property held under a long lease, the leased property itself, and the long lease. ¹ Ibn Abidin defines it as a lease whose purpose is to keep others out and to keep the land for building or planting, distinct from khulu and from the wider long lease. ² Hikr occurs mostly on waqf property, sometimes on private property; most jurists' discussion concerns waqf. ^{2 3} A long lease of private property is lawful; for waqf the Hanafis and Malikis forbid exceeding a set term (generally three years for land among the Hanafis; four years for land and one year for a house for mosques and the poor among the Malikis). ^{3 4} The Shafiis and Hanbalis allow long leases of waqf as need and benefit require; Ibn Qudama argues from the lease in the story of Moses and Shu'ayb. ^{5 6} Where the founder forbids a long lease his condition binds; some Hanafi and Shafii jurists allow a device of consecutive yearly contracts unless the founder forbids it. ⁶ Most jurists limit the long lease of waqf to conditions such as ruin of the waqf, lack of income to repair it, and no lender who can advance the sum. ⁶ (On the ruling about leasing waqf land long-term the majority allow it with conditions: the waqf is ruined and its beneficiaries cannot use it, it has no income to repair it, and no lender will advance the needed sum below the rent for that term; the Hanafis add that the waqf cannot be exchanged for income-bearing property. ⁷ The Hanbalis and most Shafiis allow it outright unless the founder forbids it, and some Shafiis forbid it altogether. ⁷ When the administrator takes a sum from a person to repair the waqf and grants that person part of the usufruct as khulu, the payer owns that part and owes a permanent hikr on the rest. ⁷ Only the administrator, who holds the power to lease, may grant hikr; the Maliki Adawi treats the custom in Egypt as a condition, so hikr leases run for ever; the Hanafis give the holder a right of settlement while his building stands and he pays the fair rent. ^{7 8} A lease below the fair rent is void for gross undervaluation in the Hanafi view, and the jurists differ on liability; the fair rent may rise or fall during the term according to each school's rules. ^{8 9 10} What the holder builds or plants with the permission of the judge or administrator is his absolute property, saleable, giftable and inheritable, while the soil remains waqf. ¹¹ Views differ on pre-emption over buildings, on endowing a building to another beneficiary, on the holder's death before building, and on the end of hikr when the building perishes. ^{11 12} The entry closes at the next heading, hukm (حُكم), on p.7232. )