Hiyaza (possession and its effect on title)

الحيازة

Hiyaza lexically is gathering and taking something into one's hand; technically it is laying hands on a thing and controlling it, and it equals taking possession. ^{1 2} Al-Hattab gives three grades: the weakest is dwelling or farming, next building, planting and exploitation, and strongest a disposition by sale, gift, charity, manumission or any act an owner does with his property. ² For most jurists possession and taking delivery are one; laying the hand may mean ownership or management, and it counts in the weighing of proofs. ^{2 3} Possession is lawful when it comes by reviving dead land, hunting, gathering grass, mines, treasure trove and found property, or by contract, and unlawful when by usurpation, theft or brigandage. ³ Ibn Rushd holds that possession is evidence of ownership and does not transfer it; its weight depends on its duration, the claimant's relation to the possessor and the nature of the thing. ^{3 4 5} On conflicting proofs, the Hanafis and a Hanbali view prefer the claimant's proof, while the Shafiis and Malikis prefer the possessor's; the Malikis have detailed rules on the grades of possession, the claimant's presence and knowledge, the length of silence, and bars such as fear, incapacity or youth. ^{4 6 5 7 8 9} On the Maliki view the period is ten years, the sound view by the hadith 'whoever possesses a thing for ten years owns it', with a view of seven years and a view leaving it to the judge; between relatives and partners it exceeds forty years, and between father and son the view differs. ^{10 11 12} For movables the rule differs: clothes and beasts are judged by discretion, and possession of property between relatives, in-laws and clients has its own grades. ^{12 13} The effect of a sale or a gift depends on whether the owner was present, objected or was silent, and a right is not lost by a late claim. ^{12 13 14} Where the right is fixed by a judgement or a sound deed, possession avails nothing, and possession only avails where the origin of ownership is unknown. ¹⁴