The Ruling on Owning Real Estate in Makkah and the Lands of the Sacred Sites
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Question:
He says: Honorable Shaykh, may Allah grant you success, the jurists (may Allah have mercy on them) differ on the issue of Makkah: was it conquered by force or taken by agreement? And is it an endowment (waqf) or is it general for the Muslims, such that it is not rented out or sold? What is the correct position in this issue?
Answer:
The point is not that it is a conquest by force or a conquest by treaty; the point is that it is a sacred precinct, that it is a mosque, all of which is called al-Masjid al-Haram. Allah the Exalted said:[Al-Hajj 22:25] So, does the fact that it is a sacred precinct prevent ownership within it, and are the people there, whether nomads or residents, equal?
This is the opinion of some scholars who said that the buildings of Makkah cannot be owned. They said that they are not even rented out, but are left for those who wish to stay in them. However, this opinion has not been acted upon for a long time. The practice of the Muslims has continued to be that they own property in Makkah, rent it out, and sell it, without any objection.
When the Prophet (peace and blessings be upon him) was told in the Year of the Conquest to stay in his house tomorrow, he said, "Has 'Aqil left us anything?" Meaning, has 'Aqil ibn Abi Talib left us any buildings or houses? This implies that he sold them. And 'Umar ibn al-Khattab bought Dar al-Nadwah; he bought Dar al-Nadwah and made it a prison. So it is correct that there is no barrier to owning the buildings, lands, and structures of Makkah, and selling and renting them out. Otherwise, Makkah would be ruined. If this were prevented, Makkah would be ruined; the people would ruin it. But note that the lands of the sacred sites (al-Mash'ar) are those in which it is not permissible to build or own, such as Mina, 'Arafah, and Muzdalifah. It is not permissible to own these lands or build on them; rather, they are left for the rituals to be performed there. As for what exceeds the sacred sites, it is correct that there is no harm in owning, selling, and buying it. Yes.
He says: Honorable Shaykh, may Allah grant you success, the jurists (may Allah have mercy on them) differ on the issue of Makkah: was it conquered by force or taken by agreement? And is it an endowment (waqf) or is it general for the Muslims, such that it is not rented out or sold? What is the correct position in this issue?
Answer:
The point is not that it is a conquest by force or a conquest by treaty; the point is that it is a sacred precinct, that it is a mosque, all of which is called al-Masjid al-Haram. Allah the Exalted said:
and [from] al-Masjid al-Haram, which We made for the people - equal are the resident therein and one from outside; and [also] whoever intends [a deed] therein of deviation [in religion] or wrongdoing - We will make him taste of a painful punishment.
وَالْمَسْجِدِ الْحَرَامِ الَّذِي جَعَلْنَاهُ لِلنَّاسِ سَوَاءً الْعَاكِفُ فِيهِ وَالْبَادِ وَمَن يُرِدْ فِيهِ بِإِلْحَادٍ بِظُلْمٍ نُّذِقْهُ مِنْ عَذَابٍ أَلِيمٍThis is the opinion of some scholars who said that the buildings of Makkah cannot be owned. They said that they are not even rented out, but are left for those who wish to stay in them. However, this opinion has not been acted upon for a long time. The practice of the Muslims has continued to be that they own property in Makkah, rent it out, and sell it, without any objection.
When the Prophet (peace and blessings be upon him) was told in the Year of the Conquest to stay in his house tomorrow, he said, "Has 'Aqil left us anything?" Meaning, has 'Aqil ibn Abi Talib left us any buildings or houses? This implies that he sold them. And 'Umar ibn al-Khattab bought Dar al-Nadwah; he bought Dar al-Nadwah and made it a prison. So it is correct that there is no barrier to owning the buildings, lands, and structures of Makkah, and selling and renting them out. Otherwise, Makkah would be ruined. If this were prevented, Makkah would be ruined; the people would ruin it. But note that the lands of the sacred sites (al-Mash'ar) are those in which it is not permissible to build or own, such as Mina, 'Arafah, and Muzdalifah. It is not permissible to own these lands or build on them; rather, they are left for the rituals to be performed there. As for what exceeds the sacred sites, it is correct that there is no harm in owning, selling, and buying it. Yes.
Source
قناة «العلامة الدكتور صالح الفوزان»، [1078 -2802]هل مكة فتحت عنوة أم فتحت سلمًا؟ وهل هي وقف فلا تؤجر ولا تباع؟ - الشيخ صالح الفوزان — youtube.com
The Arabic text is a machine transcription of the audio recording.