Building homes with Zakaah funds
QUESTION:-
Can a person build on Waqf Zamin using Zakaat funds, and thereafter, make the Fuqara the owners of that building?
ANSWER:-
In the queried scenario, we understand that the land was made Waqf for the use of the poor in a general manner, without any restrictions, hence, the poor may utilize or derive benefit from the land by putting up homes, farming, etc. Now, Zakaat funds are used to put up homes on the land and then handed over to the poor, hence, the poor are made the owners of the structures. In essence, the land is Waqf, but the structure belongs to the recipient of Zakaat. If the poor person decides to move to another place, then he is free to uproot his structure and take it along with him, as he is the owner of the structure. If this is the case, then the arrangement seems to be in order as the poor person is deriving benefit from the land, but using his own structure.
Below, we have reproduced a Fatwa which was written by us and approved by the Darul Ifta of Darul Uloom Azaadville, while we were serving at the institute. The Fatwa also indicates that the above arrangement is in order. The Fatwa is as follows:
The Fuqaha have quoted a Mas’ala under the chapter of Ijaarah, where a person leases a piece of land from the owner and erects a building on it. When the lease agreement terminates, the lessee will be required to uproot his building and hand over the vacant piece of land to the lessor.
(ويجوز أن يستأجر الساحة) بالحاء المهملة – وهي الأرض الخالية من البناء والغرس (ليبني فيها) بناء (أو يغرس فيها نخلا أو شجرا)، لأنها منفعة تقصد بالأراضي كالزراعة (فإذا انقضت مدة الإجارة لزمه) أي المستأجر (أن يقلع البناء) الذي بناه (والغراس الذي غرسه، إن لم يرض المؤجر بتركها (ويسلمها) لصاحبها —- (اللباب – كتاب الاجارة)
The above-mentioned Mas’ala indicates that it is possible for one person to own the building, whilst the land is owned by another. Based on the above, it will be acceptable to erect a building using Zakaat funds and hand it over to a recipient of Zakaat. In conclusion, the recipient of Zakaat will own the building only, and not the land.
However, because Syria is a war-stricken country, it is possible that the structures you intend erecting with Zakaat funds may be destroyed even before it reaches completion. In other words, during the construction, it could be bombed or dropped to the ground using bull dozers, etc. In such an instance, the Zakaat funds used will not be discharged since the recipient of Zakaat hasn’t yet taken possession of the building. It is only when the recipient of Zakaat takes possession of the Zakaat (whether in cash or kind), that the Zakaat is discharged.
Secondly, if the land is not owned by any individual as you have stated, then who does the land belong to? If the land belongs to the state, then consent should be taken (from the state, if possible) before undertaking such a project. It seems that there is some level of consent and freedom for the citizens to occupy the land, since they are currently residing in various areas in movable tents. However, we are not aware of the conditions and laws in Syria, therefore making it difficult for us to comment on this particular aspect.
ALLAH TA’ALA ALONE IN HIS INFINITE KNOWLEDGE KNOWS BEST!
ANSWERED BY:-
Mufti Mohammed Desai
Date:- 29 Dhul Qa’dah 1444 / 19 June 2023