Fixtures and right of tenure (kadik)

In the jurists' terms a kadik is what is fixed in a shop in a way meant to remain, and that cannot be moved, such as a building, fitted shelves and locks; the book notes that the jurists also call this a sakna. The word can also mean things placed in a shop without being fixed, goods that are not attached at all, or the sum paid for the right of use, which the jurists call khuluw ^{1 7}.

A kirdar is a tenant's or farmer's building, planting or earth-filling on land with the owner's or administrator's leave, a wider term than kadik ⁷. A marsad is a fixed debt owed by an endowment to a tenant who repaired it at his own cost; the holder cannot sell the building ⁷. A maska is the right to plough another's land; it cannot be valued, owned, sold or inherited ⁷. Khuluw gives its holder a share of the benefit of an endowment, not the things themselves, while a kadik is a set of things owned by a shop tenant ².

A tenant who builds in endowed property in a way meant to remain has a right of tenure, as long as he pays the fair rent for the shop without the fixture; the Hanafis hold this, and the Malikis agree ². The Murshid al-Hayran says a fixture fixed to the ground by building, planting or a permanent fitting is valued property that may be sold and inherited, and its holder may keep it at the fair rent ².

The conditions, in these jurists' view, are: the administrator's permission to install the fixture, since a fixture installed without it counts for nothing; payment of the fair rent to avoid harm to the endowment; and no harm. If the tenant is shown to endanger the endowment itself, the judge ends the lease and removes him ^{3 8}. If the fair rent rises much after the contract, the preferred Hanafi view requires renewing the contract at the higher rent ⁸.

Where the fixture stands in a shop the owner owns, the owner may require the tenant to remove it, since the lease ends with its term and nothing remains of it, a point agreed. Ibn Abidin distinguishes an owner who may refuse to lease his property from an endowment that must be leased ⁴. Al-Nawawi and the Hanbalis say that a building or planting on rented land belongs to the tenant; Ibn Rajab says the owner may take it at its value once the term ends, and the schools differ on the effect of a condition to remove it ⁹.

The Hanafis forbid endowing a kadik, since there is no common custom for it, unlike endowing a building or trees; the Malikis imply that endowing it is valid, and al-Gharqawi reports that practice in Egypt followed the view that endowing khuluw is valid ^{9 5}. The book finds no text for the Shafi'is and Hanbalis on endowing a kadik, though they allow endowing buildings and plantings ⁵.

A tenant with a right of tenure may sell what he has installed, and the right of tenure passes to the buyer, who must pay the fair rent for the bare ground ^{5 6}.

The Hanafis and Shafi'is do not allow pre-emption in the sale of a building without its ground. Ibn Abidin rejects a Hanafi commentator's view that pre-emption applies to a khuluw joined to the ground, as contrary to the text. The Malikis allow a co-owner of a building on endowed leased land to take the share by pre-emption ⁶.