In the Name of Allāh,
the Entirely Merciful, the Especially Merciful
Praise is due to Allāh, Lord of the worlds, may the blessings and peace be upon our master Muḥammad, the last of prophets, on his family, and all his companions.
Resolution No. 171 (9/18) Easement Rights and their Contemporary
Applications in Common Property
The Council of the International Islamic Fiqh Academy of the Organization of the Islamic Conference, holding its 18th session in Putrajaya, Malaysia, on 24–29 Jumādā al-Ākhirah 1428h (9–14 July 2007),
Having examined the research papers submitted to the Academy concern- ing Easement Rights and their Contemporary Applications in Common Property,
Having listened to the discussions on the subject,
Resolves
First: Definition of Easement Rights
Easement rights include any right or benefit that a property is entitled to in another property.
Second: Types of Easement Rights
Easement rights are diverse and continuously changing; however, in old times, the Fuqahā had tackled some of them, including the following:
- Watering Right: It refers to the right of having a turn to use water for irrigation or animal drinking or to channel water from one property to the
- Draining Right: This refers to the right of draining excess or wastewater from one property to the other or across it to a public ditch.
- Passage Right: It refers to the right to access one property by passing through another neighbouring
- Right of Topping: It refers to the right of the different parts of a multi- story building, which belong to different owners, to rise above and rest on top of each other.
Third: Emergence of Easement Rights depends on the following factors
- Permission of the owner in case of private property, against compensation or free of charge;
- Necessity;
- Reclamation of Wasteful (non-owned/non-used) Land;
- Neighborhood and Joint Property;
- Any other Shariah-acceptable factors that could emerge at any time, such as extending electricity cables or water and drainage pipelines.
Fourth: Shariah Rulings
- The general Shariah maxim applicable to easement rights is that: in prin- ciple, utilities are permissible while harms are prohibited.
As regards privately owned/acquired water and water sources, easement right of getting water does not apply except in case of necessity and sub- ject to fair market price.
- Easement right of access to drinking, channelling, or draining water is established for real estate, farms and the like in accordance with usual traditions and customs.
This includes water extensions for factories, workshops, and drainage systems, provided that using such rights does not harm others.
- Right of Topping is also guaranteed with or without compensation as per the governing laws and regulations.
Fifth: Contemporary Forms of Easement Rights
Well-established contemporary norms and traditions consider the extension of service devices such as communications, electricity, water, gas, sanitary and central air conditioning pipes as easement rights.
Sixth: Shariah Rulings on Contemporary Forms of Easement Rights
Private parking lots for buildings, market areas, and retail stores are considered part of the property where parking is permitted.
Indeed, Allāh is All-Knowing.
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