Khullu (tenant's right over waqf and state land)

الخلو

Khullu is lexically emptiness; in later books it names the usufruct a tenant owns over a waqf property in return for paying the administrator funds to repair it, with a fixed share of its use and the rent paid for the rest for the beneficiaries. ¹ It also names the right of a tenant of state land to keep it if he has built, planted or filled it, and the cash paid for giving up that right. ¹² Related terms: hukr (the rent on waqf land for one who built or planted), farigh and ifrigh (giving up a right for a price), jadak (movable goods of a tenant attached to a shop or not), kirdar (what a farmer builds or plants with leave), murassad (a debt fixed on the waqf by the tenant's repair), and mashd al-maska (the right to farm another's land in later Hanafi usage). ²³³ The nature of khullu: it is ownership of the usufruct, not of use, so its holder may let, give or lend as he likes; the Malikis distinguish that the owner of use uses the thing by its quality, whereas the owner of usufruct may transfer; khullu passes by inheritance. ⁴ Ways khullu arises on waqf property: by agreement of founder or administrator with the tenant; the Maliki cases include a crumbling waqf let to someone who repairs it, the mosque with shops whose rent cannot repair it, a barren waqf land on which the tenant builds, and shops whose use is sold before the endowment; Shaykh Ulaysh held that the third case is practised. ⁴⁵⁵⁶⁶ Sale of usufruct apart from the property: the Hanbalis allow selling part of a waqf to repair the rest when it cannot be let, the founder and the beneficiary being one; Buhuti holds that khullu cannot be created for money in every case; a person who takes a property from a previous tenant for money does not become owner of the khullu, as Ibn Abidin argues. ⁷ Hanafis: khullu falls under the sale of bare rights; the Hanafi texts split on the validity of such sale on custom, with the Shahid and most texts against it; many muftis allowed it by custom; al-Hamawi leaned against it; al-Amadi made it binding by necessity, analogous to the sale of trust. ⁷⁸⁸ Malikis: the fatwa of al-Laqani on ownership, inheritance and sale of khullu was followed; al-Hamawi says it has no text from Malik; al-Gharqawi says it is derived from the texts; on continuation by custom acts as a condition, and al-Dusuqi and al-Bannani base continuation on the public interest. ⁸⁹⁹¹⁰ Rent: the rent for waqf property is the going rate; the Hanafis hold that a large sum paid to get a lower rent does not count, as it harms the waqf. ¹⁰¹¹¹¹ Conditions for khullu by Maliki law: the sum paid must go to the waqf's needs, no income must already cover the repair, and the spending must be proved. ¹¹¹²¹² The holder may sell, let, pledge, give, lend or bequeath; Buhuti holds bought khullu is held in common, so it may be sold, given or used for debt but not let. ^12131213 Pre-emption: where several tenants built on a lease-land and one sells his part of the building, the others have pre-emption; Abu al-Saud allows it in plantings, and Ibn Abidin calls it an error against the text. ¹³ Gift or endowment of khullu: most later Malikis allow it, since part of the usufruct is waqf; the Shirwani, Hanbalis and al-Ajhuri forbid it, since a waqf cannot be made of a waqf; Ulaysh turned to permit it, and it was practised in Egypt. ¹³¹⁴¹⁴ Hanafis: a building apart from its land may not be endowed by many, though it may be by custom; Ibn Nujaym allowed the sale and endowment of buildings and plantings on leased land; a filling of earth may not be endowed. ¹⁴ Khullu in waqf property passes by inheritance where it is owned and may be sold or pledged; these views are reported from the Malikis, Hanafis and Hanbalis, and inheritance follows God's shares; repairs fall on the holder in proportion to his interest, and the administrator may share them. ¹⁵ Second case: the tenant has a right of occupation by what he built or planted in the waqf land with the administrator's leave, to be his own and khullu (the kirdar by Hanafi usage, or the jadak attached to a building); he may keep it on payment of the going rent unless its keeping causes harm. ¹⁵¹⁶ Renewal at the end of the lease: the administrator has a choice at the root, but keeping the tenant is better in the view of those who support it, to avoid harm to him; the renewal may not be below the going rent, and if the rent rises much the contract is renewed at the higher rate, the tenant's acceptance suffices. ¹⁶ The Hanafi condition for a right of occupation: the building must be made with the administrator's leave to be the tenant's; without a kirdar or jadak he has no right after the lease; if he dies before building, the lease ends and the heirs lose the right. ¹⁶¹⁷ Sale of a valid khullu: the tenant may sell what he built on the land, and the right of occupation passes to the buyer, who pays the rent for the bare land; the bare right before building cannot be sold by the Hanafis, and some forbid its surrender for money; the Hanbalis hold that surrender of private waqf is void. ¹⁷¹⁸ Malikis: when the lessor beneficiary dies the lease ends, and the building belongs to the builder, who may remove it or take its value if the waqf income can pay; Khurashi reports this. ¹⁸¹⁹ The Shafiis and Hanbalis do not state the text, and the rule of lease ends the right at the end of its term; Ibn Rajab says the lessor may take the building for its value if the lessee does not remove it; the Malikis say khullu is sold, pledged and inherited. ¹⁹ Khullu in state land: for the Hanafis state land is not inherited, as its ground belongs to the treasury, and it passes only by the ruler's leave; what is planted or built on it is inherited; the holder's right of possession is not inherited, but later Hanafi fatwas let it pass to the sons as priority. Among the Malikis the state land is disputed: some say not inherited, some say its usufruct is inherited while the land tax is paid. ^19202021 Shafiis and Hanbalis allow sale of what the holder built and planted, not of the land; Ahmad disliked selling a shop above its value lest it become a means of selling the land; Ibn Taymiyya allowed selling it so that the tax goes with it. ²¹ Inheritance of state land: the Hanafis: what is planted or built on it is inherited, and the right of possession is not; the Malikis who deny inheritance hold the ruler may assign it, and a custom in some villages of Upper Egypt gives sons only, which Ulaysh rejects in favour of the legal shares. ²² Inheritance of khullu: the Malikis, Hanafis and Hanbalis who hold it owned, saleable and pledgeable hold that it is inherited by God's shares; the Malikis add that the heirs of one who held state land have prior right if the land tax was paid. ¹⁵ Private property: a tenant has no right of occupation in private rented property for the Hanafis, since the owner is entitled to his property; the Hanbalis allow selling the usufruct but not renting it; if the tenant built with the owner's leave and leaves, the building may be sold to a buyer who takes on the rent. ²³²⁴ Taking a khullu price from a later tenant: if the first tenant owns the usufruct by a valid lease at the going rent, he may take a payment from a tenant who takes his place; Ulaysh holds that a tenant without a valid lease has no khullu, and the payer may recover from the one who took his money. ²⁴ Continuation after the term: the owner regains his property, unless the contract established khullu for a sum, in which case it may be sold to a later tenant by those who admit it. ²⁵