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Definition of Vacancy Allowance:

Linguistically, substitute of something means:  replacement and substitute is derived from the emptiness of a place if there is no one in it and when it is emptied of its contents. (1)

Idiomatically, (vacancy allowance) refers to the amount of money paid by a person equal to the waver’s (the disclamer’s) right to use the real estate. It assumes many names, which includes free store, foot transfer, man transfer, ground rent, observatory and many others. (2)

Types of vacancy allowance with the Jurists (Fuqaha’)

Firstly:

Vacancy in estates belonging to endowments. Thus if the endowment is about collapsing and there is no money to keep its building, the administrator may lease it to anyone who can keep it so that the leased  money be shared between him and the leaseholder according to a known percentage such as quarter, half or one third.(3)

A classic example of this type is a case when  a mosque is in need of finance for the completion of its construction, whilst the mosque has a store which was kept as endowment for the mosque, the administrator (of the endowment) may take money from the leaseholder to construct the mosque with it,  and then reduce from the rent of the store in place of that.   Thus if it was thirty (30) it will now be fifteen (15)(4)

Secondly:

 Vacancy for perpetual leasing or lifelong housing. Thus if the leaseholder pays an amount of money to the owner of the endowment or its administrator in exchange of perpetual leasing , hence, the owner does not own the place any longer.(5)

The first appearance of vacancy allowance was in the 9th century Hijri on the stores of endowments in which their administrators stipulated a specific amount of money to establish the right of leaseholders in staying in them. The Maaliki  Jurist at the time, Naasir Al-llaqaani Al-Maaliki issued a verdict in support of its legality. This was the first contract of vacancy, and was specifically in endowments, but later expanded and covered other private properties. (6)

Ruling of the above two types

The jurists differed in its ruling into two opinions

First opinion:  permissible,  said by the belated scholars of the Hanafi and Maalikiya Mazhab. (7)

Second opinion: it is not permissible. said by some Hanafis (8)

Proofs for those of the first opinion:  they cited the following as proofs in support of their opinion:

1-acting upon  it (vacancy allowance) does not oppose any text of the sharia,hence, it is allowed

2- a custom that does not contradict with the sharia is permissible, and people has indeed been accustomed with dealing in vacancy, and customary practice is judicatory, besides it is part of special customs which is recognizable(in sharia).

The above proof was debated thus: it is not acceptable that a special custom is recognizable, as there is a difference of opinion in that, and vacancy is of special custom and hence, not recognized, rather, what is accepted and recognized is general custom.

The above was answered thus: the most appropriate view is that special custom is recognized in the sharia.

3-that vacancy allowance is in the interest of the endowment, and circumstance necessitates it.

4- it is allowed because of the need of people towards it as stated by a legal maxim: “ if something becomes straighten it widens up”

Proofs of those of the second opinion

Those who opined for the impermissibility propounded the following as proofs in support of their opinion:

1-that it is of specific custom, and specific custom is not recognized.

They cited for the impermissibility of the second type of (vacancy allowance) the following proofs  akin to the above:

-the leaseholder does not pay rent equal to physical amount of the estate,  and this is not allowed in endowment.

Preponderant opinion:

The preponderant opinion is the first one in all the two types (vacancy allowance) due to its safety from every recognizable opposition. A contemporary derivation of the issue; “Vacancy Allowance in Real Estate Endowment” is as follows:

Money taken by a real estate owner or an endowment administrator from a tenant at the commencement of the contract. Thus , if the owner or the administrator charges the tenant in the beginning of a rent contract an amount of money with a huge  percentage in addition to the annual or monthly rent. This is named as “vacancy allowance”.

The right opinion (with regard to the above scenario) is that it is permissible if the two parties agreed on that and such amount is regarded as part of the rent. The permissibility of it was supported by the verdict of association of Islamic Jurisprudence(journal of association of Islamic Jurisprudence 2/ 2172 )

It is for the reason of the stipulation of vacancy allowance by owners and managers of estates that lead to the high prices of renting , taken the advantage of the fact that tenants will never leave their estates and will never increase them in their rents even after many years, hence, they stipulate vacancy allowance in order to avoid digesting their right. (above source, and the book: contemporary monetary transactions in Islamic Jurisprudence pp: 68)

References:

1-Al-waseet Dictionary 253/1 Misbaahul-Muneer 181/1

2- Contemporary monetary transactions in Islamic Jurisprudence :2/1828, Minh al-Jalil 7/52, fath al-Ali al-Maalik 2/249

3-Tanbeeh …: pp: 36

4- Contemporary monetary transactions in Islamic Jurisprudence pp: 59, Tanbeeh pp: 36

5- Haashiyata Ibn Aabideen 7/37, Marshad Hairaan pp: 200, and Tanbeeh …: pp: 36

6- fath al-Ali al-Maalik 2/249, Minh al-Jalil 7/52

7- fath al-Ali al-Maalik 4/443, Minh al-Jalil 2/248, Haashiyata Ibn Aabideen 7/35

8-al-Ashbaah wa –an –Nazaa’ir Ibn Nujaim pp:103 and Haashiyata Ibn Aabideen 7/35

 

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