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Fiqh of Transactions #23 – Right of Preemption

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Hatem al-Haj

Channel: Hatem al-Haj

Series:

Episode Notes

Episode Transcript

© No part of this transcript may be copied or referenced or transmitted in any way whatsoever. Transcripts are auto-generated and thus will be be inaccurate. We are working on a system to allow volunteers to edit transcripts in a controlled system.


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Bismillah Alhamdulillah wa salatu salam ala rasulillah

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I'm about to proceed.

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So today inshallah we will have two chapters and and next time as well it will be two chapters two chapters it will be about the chapter on gifts and Baba, Baba, read the chapter on the gift of the terminally terminally ill.

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So those are two separate chapters the reason why we're we're doing the two sessions is we wanted to catch up and finish the federal financial transactions before Amazon starts so that when we come back from Ramadan inshallah, where we'll start the

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inheritance.

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So today there will be no scale session. So the two sessions, the first one would be on so far are the rights of preemption. And the second one would be on at work for endowments. So the first is on so far.

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Mr. manleigh, in his book along them said about shofar, Ababa, so far he has capulin surname, has Satish Li,

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min Yeti mystery, where his competence is in design, his design has satisfied him and yet the mystery. It is ones right. And I wrote here as an explanation due to one status as a neighbor or co owner of a property.

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So it's one's right to take possession of the share of one's co owner, from someone who has bought it. That is the definition. But for clarification, I wrote once right due to one status as a neighbor or co owner of a property to take possession

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of by purchasing the share of one's co owner from someone who has bought it. So basically, you need to be a co owner in the hanratty method. And according to the majority, as I probably won't want to come back and discuss it later. Whether or not you are a neighbor, you need to be a co owner for the amount of money. Even if you're not a co owner, but you're just a neighbor, you are entitled to preemption to preempt the sale when your partner if you go on our property, and this applies only to real estate applies only to real estate. So when you own a property, we go on this property we have we did not yet divided we have not yet divided you understand. So we own the whole property. So we

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have an interest and each and every inch of the property is there the interest and each and every inch of the property, we have not yet divided the property.

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If that is the case, you so it is Moshe you know, it's a common property that we co own. So if that is the case, and you sell your share of the property to someone else, as a third party, I have the right to preempt that sale. But I will then have to purchase your share at what price the offered price by the purchaser by the buyer. So if if you sell your property to another buyer, and that other buyer offers you money, you know, offers you like a price, then I as your co owner,

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I'm entitled to pre empting that transaction and taking that property. And in this case, it's automatic, I have that right automatically. So once I asked for it, it's mine.

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It is mine for the price that you sold it for,

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for the price that you sold it for.

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And we will come back and say later if I have the ability to basically come up with that price within three days or, you know, in the Hanbury method, we could say within a reasonable period determined by the judge, but

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but that's what much of it is about. So according to the Hanbury method, and we will come back and talk about how the amount of money extended this to every neighbor, whether or not the neighbor co owns anything with you, as long as you have

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The borders like this is your property and this is my property, this is mine, this is yours.

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And because you said your property, remember honey, if I were to give you the right of preemption, as well, the more the majority would not give you that right because we do not own anything.

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You know,

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and we will, we'll talk about it. So, so, so, there are two hobbies, let me just put these down because they are

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on the web or sort of the reliance of the in, in this chapter is on those two are hobbies the reliance of the chapter is on those two hobbies. One of them is hobbies, our alpha

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and burapha as it Buhari said or Buhari

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reported about Africa said that the prophets of Salaam said Al Jazeera hakuba soccabet and there are variations and there are other reports and other books from other than abraca Anna's and others, but this is the one that is authentic, highly authentic kajiado hakuba sotheby ajar is what their neighbor

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the neighbor

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and I have a means what more entitled

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visakha be he means what

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is more entitled to the setup is whatever is adjacent close you know his proximity What is it Jason to him

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and according to the Hanafi is which is which is not like

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which is not an incompatible linguistically incompatible translation it means anyone who shares with you a border that is soccer he is because soccer means that which is adjacent to him. So if anyone shares a border with you that will apply to them.

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So the soccer be entitled to that which

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is next to him or adjacent to him

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or her

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so you know him and his gender listen Arabic gray.

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So we could say him and stop but just to be more politically correct, I guess.

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Or maybe it's not in English, but But in general, you know, the the pronouns the the made pronouns are made and genderless pronouns. So when you speak about the angels, you know, you use the male pronouns not because the angels are men,

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because they are a genderless. But because the male pronouns are male and generalists. That is why by agreement if you use the plural male pronoun, that would include also the females, when you use the plural female pronoun that would not include the means.

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But anyway, so

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I have to be cerca de means here, the neighbor is more entitled to that which is adjacent to him or her refer to the party from abroad. You have the other hobbies here, which is also very important in this lab where this chapter which is the hadith of Jabba, where he said

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about the Allahu pada Rasulullah sallallahu Sallam

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the shofar

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FEMA lam yorkson

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forever what part and here dude We're sorry about the poor fella so far.

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So the Prophet sallallahu wasallam pada means decreed The purpose of the Messenger of Allah sallallahu Sallam muszaphar, the creed

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messenger will also learn that Java is binding

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that preemption is binding

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female and yuksom regarding that which has not been divided

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divided divided. So not divided

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as I walk out and huddled meaning that if it if the borders have been outlined and the roads have been the borders and the roads that have been outlined, then there is no shofar, there is no preemption. Meaning if I go on, like let us say we have a harbor or we have Finnair, we have

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like a backyard that we own you and I own this backyard, this is your house. This is my house.

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And this is how our backyard, our backyard,

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we go own this backyard.

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We have not divided it yet. I own half of that you own half of it. Right.

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Once we put the border here in the middle,

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I have no right to preemption.

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I am not entitled to preemption.

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Because the more that has been put, you know, this is mine. This is yours. I have no right to preemption, according to

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medic, SFA and Ahmed, according to Abu hanifa No, I still have the idea preemption, why I am your neighbor. We share a border together.

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So why and even Juanita is saying that he's saying about

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hockey, hockey soccer be abroad. Baraka said that the prophet SAW Selim said the neighbor is more entitled to that which is adjacent to him

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or her. Why are the majority saying otherwise? They're saying the jabber said that the prophets are Southern decreed the Chihuahua is binding only regarding that which has not been divided. Once the borders and

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the roads have been outlined, then there is no preemption. There is no right of preemption. Someone may say and let's just get this out of the way because it is important, you know, before we proceed, someone may say

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how do you reconcile this it's very hard to reconcile the there appears to be some contradiction between the two. So, the majority said there is no contradiction. This is could be very, it is very possible that this neighbor is also a co owner.

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Isn't that possible? So this Hadees explains that the neighbor that is meant in this hadith is a co owner is not only a neighbor, but also a co owner, they share the backyard and they have not yet divided

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okay. So, what would the email hanifa say in this regard? He is saying

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no, not really. But this is quite clear about the neighbor the right of the neighbor.

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And you could say that this is not a neighbor, this is a co owner but not a neighbor. You know, so if I co own a property with you,

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but we have, you know,

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like I, you know,

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somehow it has been divided but there is no i think that the Hanafi is that didn't go that far to explain this hadith they favor the hadith of Buddha for over this hadith. I think that the heart of his explanation is by favoring the hadith of alborada over this hadith which is a haka cerca de they felt that it is clear enough to give the neighbor the right they also use a rational argument, which is that you know, if you are going to bring someone like new to me like a new person,

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I am more entitled than that new person because that means new persons may cause me disturbance may not be like a good neighbor. If I

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came and purchase this property and I know the neighbors around me 1234 adjacent to me on the for all four sides, and now you are bringing in a new one. That is

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I should have the right to preemptions, the Hanafi czar saying I should have the right to preemption because the the property, the value of the property is to some extent dependent on the neighbors, if you have like an annoying neighbor, you know, that could really ruin your sort of mood. So that is the disagreement. That's the biggest disagreement in this chapter between the majority on one side

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and the harpies on the other side.

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Then

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so we do understand that this right, everybody understands where this is coming from. Okay. And then he will start to talk about the conditions. So that's the definition and we have like a pretty good idea about where you know what, what it means what chauffeur means preemption means in this case, and then he started to talk about

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the conditions. He says, Well, I love this routine sabar.

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30, bousema Houben, what am I moving whatever the headline was about, it's only binding when the following seven conditions are fulfilled. The first one mentioned, it must be a case of selling, preemption is not binding in the case of gifts, donations, endowments, color, and wedding gifts.

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Okay. So how is ownership transferred from x to y, or from y to x,

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ownership could be transferred from y to x through sale, but it could also be transferred through inheritance gifts.

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endowment the nation

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holla compensation for Hola, you know, a woman would give like

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her husband compensation for cola or a man would give his wife had that worry or Sadat. That is so he would can can give her part of the property that he could co owns as a dowry. So, whenever you study,

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what you need to do first is understand the two ends of the spectrum that are agreed upon, because there will usually be two ends that are agreed upon and admitted that is controversial. Two ends that are agreed upon and admitted that is controversial. by consensus. If the ownership is transferred through inheritance, no one has the right to preemption, because inheritance is sort of like a natural transmission of ownership.

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They don't consider this to be a transaction that you can pretend to there is no transaction here to be preempted. If my share of the property is passed on to my heirs because of my death, no one has the right to preempt this and take it from them. And keep in mind preemption does not mean that you will take it for free, it means that you will take it out the price the offered price in a purchase by consensus on the other end of the spectrum by consensus. If the transfer of ownership happens through sale by consensus, I have the right to preemption if I'm co owner, I have the right of preemption or so far, if I am a co owner, and according to the canopies, also, if I'm a neighbor,

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not a co owner, but the neighbor who shares the borders with

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the with the seller.

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So

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what is controversial in the middle is when transfer of ownership takes place by one of those

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whatever means, endowments, donations, hula and so on. Do I have the right to preemption? If you give your wife the part of the property that you call your share of the property that you call with me? You give it to your wife, as a doc? Do Can I preempt this? Can I say No, I do not want your wife as my partner. You were my partner. I did not agree to your wife be my partner. Or if you are the wife and you gave your husband

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that that sort of your share of the property. Do I have the right to tell her? No. I

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You know or tell you as the husband now, your wife gave you this. And really I don't really want to be equal co owner with you. That is where the disagree. That is where we disagree according to the Hanbury method. No, I don't have that right. I don't have that right.

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The medic his agenda is that I do have that right.

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The medic is went even to say that rental property. Also I have the right to preemption rental property, which is again as though the majority the hunter fees and medical Sharpies and honeyberries. But the expanded the right of preemption to different transactions and different scenarios. So

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So just remember inheritance, no, no preemption, saying there is preemption, any transfer of ownership other than this controversial? Somebody said No, you cannot be here.

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So only say for the 100 bodies that can be preempted

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which would result in a tribe of people trying to do what like

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the pretend that it's not a secret, it's like a gift and things of that nature and then you will have to investigate and once it is proven, then you will give the right or preemption to the person now if it was if it was not a sale, and it was basically compensation for Hola.

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compensation for corridor. So you gave she gave her husband to this property or let's say So look, let's be like happier say so that it was like a duck or dowry. So he gave her his wife, this share of the property as a sub

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then I want to preempt it, let's say I can preempt it, somebody saying you cannot preempt it, let's say I can preempt

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How do I preempt it like because insane how do you preempt it whatever price that was offered, I take it for that price, but how do we determine that there was no price? This was compensation. This is like a wedding gift? There is no price here.

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So how do you determine market value market value is market value of the my chair and the property

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Okay.

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Then the six. So the first condition is that it is a sale. Now at the transfer of ownership happens via sale.

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The second the set of 30 and yonaka sudo bml Bina Eros, Athenian Hakuna Matata rubymine has been as well as it should be real estate or the attached buildings or plans attached Dillinger plans taba Aslan, so attached building our plants as a secondary

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commodity another primary commodity, only if you're buying the land, then you will have the right to the building or the the plants or you know the trees on

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actually plants is not the best translation here as it should be trees. Whereas is

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trees or plants right? But also plants would include crabs,

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right? Yeah, so you want to exclude the the virus is only about trees you know?

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Yeah. Because plants

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when the harvest in one season anyway, so just change this instead of plants trees, or maybe I explained that in the footnote anyway, so you're gonna

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have to be real estate or the attached buildings or trees.

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That is so if we call own if we call own a horse. Can I preempt you know, if we call own anything? You know, other than that, if we call on livestock, can I preempt your say, no? Well, so why is it real estate because the stakes are high in real estate, but if we could own any other property you just like if you don't like you know the new partner just said real estate is a little bit different and the stakes are high. When you get like a co owner of real estate is different from getting a co owner and

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Like sort of a mobile property not real estate like a car or a horse or something

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and uncertainly there's they're saying this because you know the whenever the prophet SAW was on and talked about, it was always about real estate whether it's Lisa Baraka or these jabber it's about things that are you know,

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real estate.

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Then the third condition here for preemption to be binding he said we're gonna shift son Moshe on family maximum dude fella show father fee, the cover the job, but under the Allahu pada Rasulullah sallallahu Sallam of Shabbat if equally Madam yorkson Fado called to produce or sorry for the Torah fetta shofar

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it should be a common property and not divided one with well define define the borders according to jabbers generation, the Prophet sallallahu Sallam has decreed that preemption is valid in all cases where the state concerned has not been divided. But if the boundaries are established and the roads are made, then there is no preemption which which is what I explained before. And we said that the HANA fees did not go by this they went by the apparent implications of harissa Baraka which is that every neighbor is entitled to preemption

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arrabiata force any economy Maryam Cassie move Amanda and Cassie Musashi photography it should be divisible preemption does not apply to what is indivisible

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indivisible, divisible indivisible. What is indivisible indivisible is when we have a like when we call own an alley that is indivisible to narrow to be divided when we go on a whim that is too small to be divided or any property that is too small to be divided. You know, we own like a bathroom, for instance, or own a bathroom.

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And, you know, the you know, one of those bathrooms like that are extremely small, like like the, you know?

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Yeah, so there is only room for one person to sit. How do we divide this? You just can't divide this. So if it if it is something that cannot be divided, then the ham daddies are saying no preemption. Not only the combat is the medic is and Japanese are agreeing with or the hunt buddies are agreeing with Americans and Sharpies, that there is no preemption, that hanafy said there is preemption. The Hanafi said it makes even more sense to give them the right of preemption here, because you're you're getting him a co owner that he cannot turn away from because you can treat his slide. So

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and some of the embeddings agreed with the canopies and some of the medicals and Sharpies as well agreed with canopies in this regard. So if he talked about the authorized position, and the three months I have medical Sharpie and Hanbury, they say if it is indivisible, there is no preemption. There is no preemption. Why are they saying this, they're saying if it is the indivisible, then I have no way of setting it

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for is indivisible, I have no way of setting it. So

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why? Because, like, if in order for me to sell it without preemption, I have to divide it first.

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I have to divide it first.

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And if it is indivisible, I cannot divide it and sell it.

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So I'll be stuck co owning this property with you. I want to set it I want out of this, you know, owners.

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And

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if you have the rights of preemption,

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if you have the right of preemption,

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all buyers will be intimidated by your writer preemption. Because they know that you know, whatever they offer, you will get to take it. So I'm not going to get buyers and I'll be stuck. The hanafy said no, that you still could sell it to the CO owner.

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You know the CO owner if the CO owner is interested and he wants to actually apply that preemption, he will take it from you and being that it is indivisible than the harm that will

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because the by username to the owner to the CO owner is greater than the case of the visible property. So it's

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Seems that hanafy position here is a little bit stronger. Because if it is indivisible, really like you should have the right to preemption. If you co own a bathroom with someone or an alley with someone or

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like

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a dead end street with someone or something or well with someone

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haven't done it preemption here is important, so that you could have the whole property that in the visible property to yourself.

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Then telecom is an akuna ships in taba about the bottle that is Shiva obatala Jafar to Canada and for support of a nomadic cadre see Him He will interact

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with me, in Cali.

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The one wishing to preempt must take the whole property being sold. If he or she asks for only a part of the right part of it, the writer preemption becomes invalid when there are two presenters, that right preemption is proportionate to their shares. If one person gives up his or her right, the other has to have to either take the whole property being sold or leave it.

00:31:29--> 00:31:54

Okay, so I want to sell this backyard. Here, I want to sell my share in the backyard. You know, we said that Hanbury said, the backyard that has not been divided. In order for snowfall to apply, the backyard is not divided. So I want to share my I want to sell my stare in the backyard.

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So you cannot as my neighbor come and say, Hi, we'll buy half of your share, I will preempt the sale in half. So this is let's say I own half of it, you own half of it. But there is no border. But I own half of it. You cannot say I will take one quarter so that I have three quarters, and I will leave the other quarter for the buyer. No, you either buy the whole my entire share that I'm selling.

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If I am selling it in one contract, you can only buy the entire share that I'm setting or leave it you know, give up your preemption right? You just can't buy a piece, you can't be entitled to a piece Why? Because you want to ruin my sale.

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Because not everyone would be interested in that one quarter. And that one quarter. Now if I if there are two pre enters, like let's say there is another neighbor here. And that neighbor owns one third, that neighbor owns one third that payment runs unfair, but there are no

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there are no borders. Each one of them owns a one third the Messiah. She's like, you know, just like a share that's dispersed in the entire property. So then I want to sell my one third, my one third, he is entitled to half of my third he is entitled to half of my third. They can preempt.

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But if one of them says I don't want it.

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The other one has to do what

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buy the entire my entire share. He cannot say I'm entitled to half of your share. No, that doesn't work. You know, I want this to sell my entire share of the property. You either buy it or not. Now let us say there are 10 co owners 10 corners, nine of them said we don't want to preempt you know, we don't want to buy and one of them said I want that one has to buy everything or leave it. He can say I'm only I only want to preempt one 10th I only want one 10th of the property that you're selling because that is I'm entitled to preemption in one sense. I want that entitlement. I want to preempt the sale of one 10th and take that one 10th of the property and the property could be huge.

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You know, it doesn't have to be a backyard. It could be huge, but we call on it together.

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The idea here is, you either take it all or leave it all. Here, what we're trying to do here is we're trying to not be unfair to the seller who wants to sell the property. Because if you ruin part of my transaction, then I am just going to be lost.

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Because not everyone is would be interested in

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part of it. And I'm also I also have an interest in setting the whole thing, you know, in one piece, and giving all of my money and just like you know, instead of selling it

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you know, in retail so so that's, that's important here, I have to take it or leave it to

00:35:51--> 00:35:59

a service in Canada at a seminar in our design who on Bob, he bought about two, what

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can a seminal Miss Leon Valley Miss Lou, when lumea couldn't miss Leon Valley hit the metal when

00:36:10--> 00:37:10

the unit Allahumma photocopiable study miamian the pre emptor must be capable of paying the price the writer preemption is dropped, if he or she cannot pay the entire price, if the price is fungible, he or she has to pay the equivalent, but if it is not, then he or she has to pay its value, if they dispute over the price, and none of them can provide evidence, then the final word is that of the buyer who must take an oath okay. So, three points here. One is you have to come up with a price immediately immediately means within a reasonable period of time, but you cannot say you know I will pay over the next six months for instance, because I got a buyer when can you say this?

00:37:11--> 00:37:21

If the original buyer took it was for the first payment, then that then the whole deal would be transferred to you.

00:37:22--> 00:37:44

The whole deal would be transferred to you. But if the original buyer took it for cash price, then you need to come up with the cash and the judge will give you a reasonable period of time to collect the cash. The Hanbury said three days because it has to be immediate has to be immediate. And also

00:37:46--> 00:38:00

Anyway, we'll come back to it so it's not clear it has to be mean you have to come up with a price but if it if the original deed was deferred, then you get to enjoy that you know you get you get you get the right to that

00:38:02--> 00:38:13

the second point is Miss Lee by Miss Lee and Timmy by its Pima tangibles if you sold the real estate for

00:38:14--> 00:38:27

3d 300,000 dinars or you sold the real estate for one final check Muhammad is this they are what No, we're fine okay.

00:38:30--> 00:39:08

If you sold your say if you saw it, so, myth leave by mystery to me by pay me meaning if you solve that for you know what fungible means substitutable prices, things that can be substituted by their exact like, what can be substituted by the exact like, you know, currency and things that are measured by weight and volume. So, you sold your thing for like two tonnes of wheat substitutable or non substitutable two tons of the same brand of wheat substitutable but you sold your property for

00:39:10--> 00:39:31

a horse for a piece of furniture substitutable or not, not substitutable because horses vary, you know greatly and value pieces of furniture vary greatly in value. So then in this case, it would have to be the value the value.

00:39:33--> 00:39:34

Now,

00:39:35--> 00:39:36

if

00:39:38--> 00:39:44

we disagree over the value, or we disagree over the price,

00:39:47--> 00:40:00

we disagree over the value or the price. Then who who should be believed in this case, the pre emptor or the buyer. Keep in mind that the presenter is not dealing with the seller

00:40:00--> 00:40:00

anymore.

00:40:01--> 00:40:44

The presenter is dealing with the buyer, the presenter would go to the buyer and tell him you took that because you took that property for this money, here is your money. And this property is mine because I co own it with, with your with the seller who sold to you. So I disagree. Now the presenter and the buyer disagree over the price, who you know whose word will be final, the buyer. Now the presenter, because he's the one who was involved in the transaction, we should believe him. Unless the presenter has beginner evidence, we will take the evidence of the presenter then.

00:40:45--> 00:41:07

But if the presenter does not have evidence that the price was less was lower than we will believe the buyer, if they disagree over the value of the PME the that thing the non fungible that the property was sold for who do we listen to the buyers still not the pre emptor

00:41:08--> 00:41:11

unless there is evidence, you know,

00:41:12--> 00:41:16

then if the buyer said, I don't remember

00:41:17--> 00:41:18

the price,

00:41:20--> 00:41:32

because they cannot happen, we will come the next point to you know, the preemption can happen years later, sometimes, but in certain cases. But if the buyer said I don't remember the price,

00:41:33--> 00:41:34

what do we do?

00:41:35--> 00:41:41

In this case, we will market value market value of what

00:41:43--> 00:41:49

have the original property that was sold that has been preempted of the very original property.

00:41:50--> 00:41:50

Because

00:41:52--> 00:42:06

if we know what it was sold for, we're not talking about the market value of the property itself, we're talking about the market value of the price. So you sold half one third of the backyard the for a horse,

00:42:07--> 00:42:38

the pre amateur will not pay the buyer, the value of the one third, the pre amateur will pay the buyer the value of the horse because that is the price that was offered. But if we forget, then it will go back all the way not to the value of the price that was offered because we forget that price but it will go back all the way to the value of the one third of the property.

00:42:40--> 00:42:41

Then,

00:42:43--> 00:42:48

okay is the seventh condition here that she accepts a sabba amatola.

00:42:49--> 00:43:37

Sara Allen, the presenter must the seventh condition for preemption to be binding the presenter must claim his or her right preemption as soon as he or she is aware of the sale of the property. For an extra bottle of shampoo in akuna, it is an honor. Otherwise the preemption is void. And in any akuna it is an unhealthy habit in our hops in our market in our surrounding fair, Khun Alisha party matter Colorado a a. An exception is when the presenter is incapable of claiming this right due to traveling imprisonment in this or young age. In these cases, the presenter is entitled to the right to preemption once he or she can claim it

00:43:39--> 00:43:45

once he or she can claim it. But would that not be unfair to the buyer and the seller.

00:43:49--> 00:43:54

It would be unfair to the buyer if they can claim it at any time.

00:43:59--> 00:44:06

But we're also saying that this imprisonment is not or any kind of imprisonment is unjustly imprisoned.

00:44:07--> 00:44:09

He's young these unjustly imprisoned,

00:44:11--> 00:44:12

he's absent.

00:44:14--> 00:44:50

But if we allow the seller to sell when he's absent, then the seller would you know would wait until his co owner, you know, goes out on a trip or something goes away and then sell quickly and just you know, so we do want to preserve the rights of the CO owner also and preemption. So they're saying that they would have the right if they're absent unjustly imprisoned or young, to encourage the seller to do what? Reach out to their partner and tell them you know, I'm gonna buy this I got this price for it. Are you interested?

00:44:51--> 00:44:54

I'm going to buy this I got this price for it Are you interested?

00:44:56--> 00:44:59

So that would be the point to hear. But when it comes to the younger

00:45:00--> 00:45:05

person that's a little bit more complicated and keep in mind but let's let's

00:45:06--> 00:45:10

first finish this part if they are imprisoned they're absent.

00:45:12--> 00:45:23

But they can have a witness that you know they have become aware of the same Hill and now in M Canada shadow Allah tala behalf lm huge hit batalla travato the enemy Allah.

00:45:24--> 00:45:25

Allah

00:45:27--> 00:46:13

mentioned a minimum of an hour Allah He said even after the minimum was any other service was satisficing. So he says However, if the presenter can call on someone to witness the request for preemption, but does not his or her preemption is unobserved, so you are absent, or you are unjustly imprisoned. You've heard of the say, what you need to do once you've heard of the say, if there is anyone around you, that you could tell them, you know, what, certainly at the time, their communications were difficult to do. So that's why they're making all of those arrangements. So yeah, you are in a different town, someone, you could grab someone and tell them, my co owner sold

00:46:14--> 00:46:24

the, you know, his share of the property that we go on, be my witness, that I claim the right to preemption,

00:46:25--> 00:46:35

you know, high demand preemption. In this case later, when he comes back, he can say to the judge, I have a witness

00:46:36--> 00:47:24

that I wanted the right to preemption as soon as I heard of the say, as soon as I heard of the said, if you have the ability to have a witness, but you did not, you know, do it, you did not have someone witness your desire to preempt the sale, you lose your right to premiums, you lose your right to preemption. So, if you are present in town, you have to go right away and ask for like preemption they say, you know, if it is late at night, you can wait until the morning, but they report heavyset is not pretty authentically traceable to the profits that serve alcohol occurred. so far is like the undoing of

00:47:25--> 00:47:56

the rope, you know, that part. So, the undoing of the rope. So, once it once you did not demand that immediately you lose it. So you could wait they say if you have to use the bathroom, you could use the bathroom, they give such examples. If you if it is late in the night, you can wait until the morning, but that's it, you have to ask for it immediately. If you are absent or unjustly imprisoned, and you have someone nearby to be your witness, you have to tell them how you want Yes.

00:48:01--> 00:48:18

Recently, however, was the only condition for like the payment and the price and the values and data applied immediately. Or, you know, when he said he asked him for this for a period of three years, five years, but

00:48:28--> 00:48:52

he he will be entitled now. Now he did not demand that you know, so the same when through the new buyer is already in has the ownership. When he comes back or he gets out of prison, he will go to the judge and say four years ago my co partner, my co owner or my partner sold

00:48:53--> 00:49:23

his share of the property. I was in prison unjustly imprisoned unjustly imprisoned, and I asked you know, I happen to be my witness that I want to preempt This here is Hasson then the judge will say to the new buyer who's been here for four years, he's owned this for four years, rightfully owned it, lawfully owned it for four years, he will tell him he is entitled to preemption.

00:49:25--> 00:49:42

And then he can take the property from the buyer, but then all conditions will apply right now. He has to have the cash and he has to take all of the property, not part of it. All of the other conditions will apply right now.

00:49:44--> 00:49:59

If he did not get someone to witness his desire of preemption, he loses the right to preemption unless there was no one around him to witness then he will still have the right to preempt. Now if he was a young boy

00:50:00--> 00:50:17

Like a young boy who inherited a share of a co owned property from his father or mother or somebody that or younger, then they have a they have a guardian to look after their interest, right?

00:50:18--> 00:50:22

The Guardian did not ask for premiums.

00:50:23--> 00:50:36

The young boy or girl who own this property, their partner sold their share the boy or girl, our little, they didn't ask for premiums, their guardian did not ask for premiums

00:50:38--> 00:50:43

are the entitle after they reach adulthood to go back and say

00:50:45--> 00:50:48

we have the right to preemption 12 years later.

00:50:51--> 00:50:51

They are entitled.

00:50:54--> 00:51:09

But there is a little bit of disagreement here about the extent of their entitlement. And when they are entitled, if their guardian did not want did not want to preempt the sale of the CO owner.

00:51:11--> 00:51:20

Because it is not the sale is not in the best interest. The sale is not in the best interest of the child.

00:51:22--> 00:51:22

Then

00:51:24--> 00:51:28

the sale. Okay. So, so the sale

00:51:31--> 00:51:32

in the interest.

00:51:37--> 00:51:40

This was the sale in the interest of the child or not?

00:51:41--> 00:51:47

Yes, no. If the sale was not in the interest of the child,

00:51:49--> 00:51:54

if the seed was not in the if the seed was in the end, okay, if the preemption

00:51:55--> 00:52:06

like possessing that share of the property was in the interest of the child in the interest, but the Guardian failed to act, you know,

00:52:08--> 00:52:55

immediately and promptly or failed to preempt, then who will give him the right of preemption. The child when the child grows up, the Maliki's shafa ease and ham bellies will give him the right of preemption if it was in his best interest. If the if if claiming preemption claiming shofar demanding, you know, preemption of the same and possessing that share of the property was not in the best interest of the child and the Guardian acted appropriately. The Guardian acted appropriately, who will give the child the right of preemption

00:53:03--> 00:53:04

hum berries only

00:53:08--> 00:53:16

hum berries will give the child the right to preemption even if it was not in his best interest when he grows up.

00:53:17--> 00:53:28

They consider this to be his right right to PMC. Whether that whether whether taking possession of that share of the property was in his interest or not in his interest,

00:53:29--> 00:53:39

the offered price they consider this to be his right. So they'll give it to the child when the child grows up regardless of whether or not it wasn't his best interest.

00:53:40--> 00:53:55

If it was in his best interest. The Maliki's if it was if it was in his best interest, but the Guardian does not act appropriately. The medic is shafa is and honeyberries will give him the right. Why are the Hanafi is absent from here

00:53:56--> 00:54:39

because the HANA fees would not give him the right of preemption anyway, because they're saying that his guardian wasn't his place. So if his guardian failed to act, it is his guardians fault, not the sellers fault or the buyers fault. So they will not give him the right to preemption when he grows up whether or not it was in his best interest. The honeyberries will give him the right to preemption when he grows up, whether or not it was in his best interest. The magic is interface will only give him the right of preemption if preemption was in his best interest.

00:54:44--> 00:54:46

The original price Yes.

00:54:48--> 00:54:52

If it is, if it is, yes, it is the original price

00:54:57--> 00:54:59

or the price went up. It's coming

00:55:00--> 00:55:01

There Yes, it's coming.

00:55:03--> 00:55:03

So,

00:55:04--> 00:55:30

then he said in the Miata, mata tobiah Delica selasa AXA for omotola. Buckminster Ameen home for in academia the one rajala Eastern even akademin, who was satisfied to say, even if the presenter isn't aware of the sibling until three or more set it to one another in succession, he or she has the right to demand that from any one of them,

00:55:31--> 00:55:54

if the pre emptive requests said from the first, the second would then claim from the first what has been taken from him or her and similarly, the third would claim from the second So, the transfer of ownership. So, x gave it to y y gave it the zz gave it to whatever

00:55:55--> 00:55:57

what's after z, there is nothing A.

00:55:59--> 00:55:59

So,

00:56:02--> 00:56:16

so, the transfer, so, the pre emptor can come and say you know, I want it for this price, that why I bought it for what I wanted for this price,

00:56:17--> 00:56:34

what I wanted for this price, he has the right to choose which the he will take then if he did this, then they have to figure out among themselves everyone who bought the property from the previous one has to go back and take

00:56:35--> 00:56:52

you know, whatever he paid or she paid, but he is entitled to basically pre empting any transaction in the series, he will have to say, you know, because why is this?

00:56:53--> 00:56:58

Why is this because he is entitled to preemption.

00:56:59--> 00:57:09

Let us say he co owns the property, he is entitled to preemption, let's say x obata to why and he didn't know

00:57:10--> 00:57:16

had he known what would have been his right to allow the sale he has.

00:57:18--> 00:57:22

So let's say he allowed it all the way up to here.

00:57:23--> 00:57:44

But he did not know from here he has not the condition here is that he does not know he only came to know now you know when the property like switched hands like the first time he came to know now then he can go back and say well I want to preempt here I want to preempt here I want to preempt here that says right

00:57:47--> 00:58:12

then now your quote condition someone built on it someone you know planted trees or matter Aqua Wolfie Garson lbnl Monastery, Otto Sofia Mehta, ala Ania Sherman study Kala human paid $1 in fee when canopies are on our salmon bed in February mystery mbak hasard how LG says.

00:58:13--> 00:59:10

So if the if the presenter claims the right and the right to preemption, and there are trees or a building on it, that belonged to the buyer than the pre enter must compensate the buyer unless the buyer chooses to pull them the trees out without harm. If there are crops or fruits that are showing signs of fruition, they are kept for the buyer until the time of harvest or picking. Now, how are we dealing with this buyer as our Khasab unlawful, you know, appropriator know, this buyer is a local buyer. So in this case, we're not forcing this buyer. We're not forcing this buyer to basically pluck out the trees demolish the building. If he was aggressive, unlawful appropriator, we will

00:59:10--> 00:59:38

force him you know, you will not apply. But now this wasn't like a local buyer. So we're dealing with him differently. Now, what we will ask now, so the buyer already built a building, we will ask the pre enter, you just came to know about this for years after the fact. The guy already built a building, take it at market value, take that building at market value

00:59:39--> 00:59:41

or give up your pitch.

00:59:43--> 00:59:52

Unless the buyer the sides that say he planted trees, unless the buyer decides

00:59:53--> 00:59:59

to move his trees. Sometimes you could do this without harm to the buyer of the buyer.

01:00:00--> 01:00:11

You know, figure that he can actually move his trees without harm, then he can move it or move the building. They actually made room for this because many times they built things with

01:00:12--> 01:00:59

structures that are mobile mobile structures move the building. So it's not all Khurana you know concrete. So sometimes it was mobile structures. That's why they talk about you know, there is a Masjid for instance, and the people of the masjid wanted to build underneath the masjid, can we raise the mustard? You know, can we take the mustard and lift it up and put something under the Yes, in the Hungarian method. So, the structure is the building structures were not always, you know, like, you know, even nowadays, some structures are mobile. So, but anyway, but if the buyer says it will cause me harm to move the building, it will cause me harm to move the trees, then that the

01:00:59--> 01:01:08

presenter has one of two options to give up his preemptions preemption or to take the structures on the land now, for the market value,

01:01:10--> 01:01:23

because that was a local buyer. And we understand that that you did not know about the preemption about the sale until much later, but again, at the same time, we can cause that much harm to the local buyer.

01:01:31--> 01:01:56

A the buyer, the buyer can demand any damage or loss or expense or cost that will ensue from this the buyer is protected the structures that the buyer built or placed on this land, he has done this lawfully, therefore, he has protected

01:01:57--> 01:01:58

from harm.

01:02:23--> 01:02:29

Okay, so you want to say that whoever owns the property, they must inform

01:02:30--> 01:02:32

the person Well,

01:02:34--> 01:02:50

that is why we have all of this trouble, so that we encourage them to inform them. Because otherwise, you know, because everybody will, will be sort of in a better place if everybody is informed.

01:02:52--> 01:02:56

But again, at the same time, at the same time,

01:02:59--> 01:03:30

you do want to go out and try to sell the property and get buyers and finalize contracts, so that you could get the price that you want, otherwise your partner if your partner preempts it before you know you sell, you know, if the partner tells you, how do you get the appropriate price, because your partner now will be in control of the pricing.

01:03:33--> 01:03:41

I want to put it on the market, I want to get buyers, because I want to sell it for the best price and then

01:03:42--> 01:04:02

force it on my partner force that price on my partner, let us say I who own this with you, you are my partner that you know, you're you. Your estimation is that this is 1008 1000.

01:04:03--> 01:04:10

I want to put it on the market. And I want to let's say buy it for sell it for 14,000. And then

01:04:11--> 01:04:17

you ought to either give up your preemption or take it for 14,000.

01:04:18--> 01:04:51

So I want things to proceed naturally. But then if you want to preempt you can preempt. And again at the same time, at the same time, let us also not forget that the CO owner may be absent, maybe in jail. And I do have a sincere interest in setting up my share and the property. So I can be also you know handcuffed until they come back because I co own this

01:04:55--> 01:04:59

has their own risk. They went by attitude

01:05:00--> 01:05:08

Their own risk, if they if they know that that co owner has the right of preemption.

01:05:13--> 01:05:36

They know that the pre order has got other preemption. Yes, they'll buy at their own risk. And they would be then interested in sort of so that to relieve themselves from that anxiety, reach out to the CO owner, if they can, and inform them, inform them that we were buying this you have interest in it?

01:05:38--> 01:05:39

Yes.

01:05:40--> 01:05:43

Then the sheer amount of loss

01:05:45--> 01:06:21

so that is the the trees and the buildings What about the plants, the crops that are crops or fruit that are showing signs of fruition they're kept for the buyer until the time of harvest are picking. So you know, if there are crops, not trees, crops, and then the presenter came now and said, You know, I take it but I take the land, he must leave the crops for the buyer because he was a lawful owner. When he was an owner, he was a lawful owner, he must leave the crops for the buyer until harvest.

01:06:23--> 01:07:14

Finally, we're in stata shuksan was safe and fiachra denwa hadn't finished up to 60 besotted, when a third party buys a share of land and a sword or any other unconnected property. In one contract, the presenter in this case has the right to take the land only in accordance with its share of the full price. So you know, I give the example in the book, say you buy yourself, you know, one half of your backyard for 8000 and your sword, which is which the value of it is 1000. You don't sell it for 8000. You sell one half of your property, hand a sword for 10,000.

01:07:16--> 01:07:22

Then the pre amateur will have the right to say hi, we'll take it

01:07:25--> 01:07:31

then we will have to value the two properties that he sold. He will not be forced to buy the sword.

01:07:33--> 01:07:33

He will

01:07:35--> 01:07:45

he will not even have the right to preempt the sale of the soul sword. But he will say hi, we'll take it for 8000 because that's the market value. That's the value of this

01:07:48--> 01:08:01

piece of the backyard. That will bring us to the end of this chapter. So we will take five or seven minutes and come back and do a walk for endowments trusts endowments