A neighbor's right of preemption
We have reviewed request no. 805 for the year 2007, which includes the following:
I wanted to sell a plot of land I own. Some of my relatives, with whom I have strong family ties, wanted to purchase it from me. My neighbor objected claiming that he has right of preemption and therefore has the primary right to its purchase. What is the opinion of the Shari'ah on this? Will I sin if I give preference to my relatives over my neighbor?
The majority of scholars agree that the concept of preemption is restrictive in nature and not comprehensive since it would contravene the established principle that one may dispose of one’s property as one wishes. According to them, a partner (in ownership), and not a neighbor, is entitled to preemption. According to Hanafi scholars, it is permissible to give a neighbor preemption; while according to some Hanafi scholars, it permissible to whoever shares the utilities such as the same entrance, access to water, the access road, and the like.
Based on this and in reference to the question, the neighbor does not have the right of preemption because he is not a partner.
Inside Egypt, the authorities favor and support this opinion in accordance to Article 393, paragraph (B) of the civil law which states: "Preemption is not permissible in a sale involving parents, ancestors, or offspring, spouses, relatives up to the fourth degree, or between in-laws up to the second degree."
The above article is the reason that judges today do not consider the aforementioned scenario to fall under preemption. Since its issue, the law of preemption was based on the Islamic Shari'ah; even if it has assumed the nature of the conventional legislation which is considered a kind of choice (ijtihad) in the Islamic Shari'ah, it must be followed since the leader's verdict eliminates (overrules) differences in opinion, as the legal maxim goes.
And Allah, the Almighty, knows best.