Irtifaq (the rights of use attached to property: the public places, the house's amenities and the watercourses)

In the lexicon irtifaq is leaning, and among its senses is benefiting from a thing; the amenities of a house (marafiq al-dar) are the water supply and similar facilities, such as the kitchen and the latrine. ^{1 2} In law, the Hanafis define it as a right fixed on one property for the benefit of another; the Malikis define it as securing the benefits attached to a property, so for them the term is wider, since it covers a person's benefit from a property. ² It differs from ikhtisas (exclusive appropriation), since sharing in the benefit is conceivable under irtifaq and irtifaq tends to be lasting, unlike exclusive appropriation. ² It differs from hiyaza (taking possession), which in the lexicon means gathering and holding and in law means laying hand on a thing and seizing it. ² It differs from huquq (rights): for Abu Hanifa the amenities and the rights are the same, while for Abu Yusuf the amenities are wider, since they are the appurtenances of a house that one benefits from. ²

The basic ruling of irtifaq is permissibility, so long as the one who takes the benefit does no harm and it is not needed to avert harm; giving the benefit is recommended, on the saying of the Prophet ﷺ that none of you should prevent his neighbour from fixing a beam in his wall. ^{2 3}

The benefit may be fixed for a term, such as a year or ten years, or for ever; then it binds the one who receives it and he may not take it back before the term. Or it may be unrestricted; then what counts is the amount that is customarily regarded as a benefit between neighbours, that is, a period in which such people usually benefit. ³

Irtifaq arises from the Lawgiver's permission for public property and unowned things, such as reviving dead land; from the owner's permission for private property; or from the requirement of a transaction, as in hire and endowment; it may also be proved by the presumption of continuing state over time. ³

The Hanbalis allow sitting in the wide parts of streets, roads and open spaces to buy and sell, provided that no one is hindered and passers-by are not harmed, since the people of the cities have agreed in all ages to leave people to do so. ³ Whoever reaches a place first has the better claim while his goods remain there; if he leaves his goods, no one else may remove them; if he moves them, another may sit there; if he sits and stays long he is refused; and if the one sitting obstructs passers-by, he may not sit there. ^{3 4} The Shafi'is hold that whoever has set aside a place in a mosque or a college to give fatwas or teach is like one who sits in the street for trade, on condition that he gives or receives benefit; the leave of the ruler is not required, and when the teacher is absent another may sit in his place. ⁴ The custom governs the conditions of the founder, and a hostel (ribat) is not to be occupied beyond three days unless there is need. ⁴

Al-Mawardi and Abu Ya'la divide the public benefits into three kinds: the open desert and wastes; the frontages of properties; and the streets and roads. ⁴ In the desert the travellers have a right of passage and rest, so the ruler has no say beyond maintaining its roads and water and keeping things even among people, and whoever reaches a stopping place first has the better claim until he leaves. If people settle there, the ruler considers what is best, and if it harms travellers he forbids it; otherwise he decides as he sees fit, as Umar did when he founded Basra and Kufa. ⁴ Places attached to houses: if the benefit harms the owners it is forbidden; if not, there are two views on whether it may be used without their leave. One allows it, because the precinct is a benefit; the other forbids it, because the precinct follows the owner's property. For the precincts of mosques, use is forbidden if it harms the worshippers and allowed if not. ⁵ It is reported on the authority of Kathir ibn Abd Allah, from his father and grandfather, that they came with Umar on his umra in the year seventeen, and the owners of the watering places asked him to build stopping places between Mecca and Medina; he allowed it and stipulated that the wayfarer has the better claim to water and shade. ⁵

The Hanafis use irtifaq for the things that serve as appurtenances, such as the right to water, the drainage of water, the path, passage, the watercourse and the neighbourhood; Abu Yusuf limited it to the benefits of a house. ⁵ The share of water (shirb) is the portion of water for land; its pillar is water and its ruling is watering. ⁵ The watercourse (masil) is the channel; whoever has a watercourse by long-standing right over another's property cannot be prevented by the owner. ⁵ The right of drainage (tasyil) is that a house has the right to let rainwater flow over a neighbour's land. ⁵

Ibn Abidin says roads are of three kinds: a road to the main highway, a road to a cul-de-sac, and a private road within a person's property. ⁶

The right of passage is a person's right to cross another's land, and the rule is that the owner may not stop him from passing. ⁶ Antiquity counts for the rights of passage, watercourse and drainage, so each is left in its old state, except what contravenes the law or causes grave harm, which is removed: a foul drain on the public road that harms passers-by, or a window over a neighbour's women's quarters. ^{6 7}

The right to build higher is that everyone may raise his own wall and build what he wishes, and his neighbour may not prevent him unless it is grave harm; the claim that it shuts out wind or sun does not count, since it is not grave harm. ⁶ The right of neighbourhood: barring benefits that are not basic needs, such as blocking air and the view, is not grave harm, but blocking light altogether is. ⁷ The cause of prohibition is the existence of grave harm; if it exists the work is prohibited, and otherwise it is allowed. ⁷

Other rights of irtifaq may arise by custom and use, such as seats in public transport and public places: where a seat is assigned to each passenger no one may sit in it without his leave; where seats are not assigned, each passenger may sit in the seat he reached first. ⁷ The Malikis, Shafi'is and Hanbalis treat the rules on amenities under other headings, such as the negation of harm and the blocking of pretexts, the conflict of rights and settlement. ⁷

Most jurists divide roads into open (nafidh) and closed (ghayr nafidh). An open road is lawful and belongs to no one, so anyone may open a door on it as he wishes, provided passers-by are not harmed. A closed road belongs to those whose doors open onto it, not to those whose walls merely touch it, and no one else may project a beam or open a door onto it without their consent. ⁷ The Malikis, Shafi'is and Hanbalis permit the sale of water and of rights attached to property, such as the rights of passage, watercourse and building higher, for need; and permit contracts on benefits even when they do not yet exist, for the convenience of people. ⁷ The sale of the road itself differs from the sale of a right of passage: if a road lies within a house which its owner sells in its ground, the sale is valid; a road in a closed lane is shared by the people of the lane and carries a right for the public. ⁸ The share of water may not be sold, given, let or given away except as an appurtenance of the land, by the apparent narration, which is the ruling; the right of drainage may be sold if its quantity is fixed; the right of passage may be sold as an appurtenance of land; and the right to build higher may not be sold, since it attaches to the air, which is not a thing. ⁸

The adopted view is that a grant of a beam in a wall may not be taken back once given, however long or short the time, and whether the grantee lives or dies. ⁸ For the grant of a site for building, the sounder view is that the owner may take it back where no term is fixed, even before the grantee has enjoyed what is customary, on paying the grantee what he spent or its value. ⁸ The Mudawwana allows the return from a site; Ibn Rushd and Ibn Zarqun made the rule for a wall the same, and Ibn Rajjal preferred it. ⁸