Apartment: A Jurisprudential and Legal Review (Book)

Author: Ali Mohammadi

Apartment: A Jurisprudential and Legal Review
Book Information
Author	Javad Fakhar Tousi
Subject	Jurisprudence of Urban Development / Jurisprudence of Transactions
Style	Analytical
Language	Persian
Publication Information
Publisher	Majd

Abstract

Apartment: A Jurisprudential and Legal Review (آپارتمان: بررسی فقهی و حقوقی), a work by Javad Fakhar Tousi, is a research in the jurisprudence of transactions (Fiqh al-Mu'amalat) and the jurisprudence of urban development (Fiqh al-Shahrsazi) that examines contracts related to construction and apartment living with a descriptive, analytical, and comparative approach. The author analyzes construction contracts, such as partnership in construction, contracting, and pre-sales, considering the partnership in construction contract as an independent contract and believing that in a partnership contract, the mixing of contributions (Mazj), their uniformity, and their simultaneous delivery are not necessary. In the discussion of contracting, the author examines the analysis of the lease of labor (Ijarah al-A'mal) as well as the possibility of the independence of this contract. He applies the pre-sale of an apartment to the rules of a forward sale (Bay' al-Salaf) and emphasizes the necessity of the specifications being known and the possibility of its delivery, but he does not consider the immediate possession (Qabdh) of the price (Thaman) and the transaction object being a fungible entity on the liability (Kulli fi al-Dhimmah) as a condition for validity.

In the construction phase, the author examines the duties of the builders in two areas: from the perspective of neighbors' rights, he considers it necessary to prevent non-damaging nuisances in construction, but he believes that, in the presumption of necessity, these nuisances are permissible and the consideration of the owner's loss takes precedence over the neighbor's loss. From the perspective of public law, he also emphasizes observing the privacy (Harim) of thoroughfares, preventing overlooking, and maintaining the security of adjacent houses.

In the post-construction phase, Fakhar Tousi analyzes the transfer of constructed apartments primarily in the form of a sale (Bay'), and the transfer of related loans through assignment (Hawalah), guarantee (Dhaman), and agency (Wikalah). In the section on apartment living, he explains joint ownership (Malikiyyah Musha') in public areas such as staircases, rooftops, and courtyards, and delineates the obligations of the residents in proportion to their privacy (Harim) and the extent of their utilization and encompassment of these spaces.

Brief Overview

Apartment: A Jurisprudential and Legal Review, is a book in the field of the jurisprudence of transactions and the jurisprudence of urban development written by Javad Fakhar Tousi. Javad Fakhar Tousi is a professor at the Islamic Seminary of Qom, and the books A Jurisprudential Research on News and News Agencies and Rights of the Accused: A Jurisprudential-Legal Review are among his other works in the field of contemporary jurisprudence.

The present book was published in 2015 (1394 SH) by the effort of Majd Publications in 250 pages. Using a descriptive, analytical, and comparative approach, the author examines jurisprudential and legal discussions and compares the legal systems of Iran with countries such as Egypt, France, and Switzerland. The use of the opinions of early and late jurists (Fuqaha) alongside positive laws, and the presentation of practical solutions for common problems in apartment living are among the distinguishing features of this work.

Structure of the Book

The book Apartment: A Jurisprudential and Legal Review begins with a table of contents and an introduction by the author, and concludes with a bibliography. The main discussions of the book are organized into four primary sections. The first section examines discussions related to contracts concerning apartment construction, the second section deals with the jurisprudential and legal discussions of construction, and the third section investigates contracts related to the sale and transfer of apartments. The final section of the book is dedicated to jurisprudential discussions related to apartment living, including the ownership of common areas (Musha'at) and the obligations of residents.

Construction Contract or Pre-Sale of the Apartment

In the first section of the book, the author engages in a jurisprudential analysis of contracts concluded for the construction of apartment complexes. The discussions in this section are arranged under three chapters and based on common contracts: partnership in construction, contracting and order of construction, and the pre-sale of an apartment.

Partnership in Construction Contract and the Examination of Criteria Related to Contributions

The author examines the partnership in construction contract under the partnership contract (Aqd al-Shirakah) and considers the realization of partnership to be the result of factors such as inheritance, acquisition of ownerless property (Hiyazah), mixing (Mazj), and contract (p. 19). Referring to the consensus of most Shia jurists regarding the legitimacy of the partnership contract, whether in the form of the assembly of owners' rights or as an independent contract, he emphasizes this agreement (p. 23). Despite the critiques he has raised against the arguments of the proponents, the author considers the partnership contract to be an independent contract and introduces the partnership in construction contract as an instance of it. In his view, to accept this contract, reliance on general evidence such as the verse "Fulfill the contracts" (Awfu bi al-'Uqud), "Trade by mutual consent" (Tijaratan 'An Taradhin), and the narration "People have absolute authority over their properties" (Al-Nasu Musallatuna 'Ala Amwalihim) is sufficient (pp. 31-32).

The author points out that in jurisprudential sources, criteria have been proposed for the contributions of the parties in a partnership contract, some of which are not observed in the partnership in construction contract; hence, the examination of these criteria is of importance (p. 32). These criteria are:

• Mixing of contributions; Relying on evidence such as "Fulfill the contracts" and narrations that have deemed a mere verbal agreement sufficient, Fakhar Tousi does not consider the mixing of contributions as necessary and believes that a partnership contract without mixing (Mazj) is also valid (p. 34).
• Uniformity of contributions; The author considers the criterion of partnership to be the indistinguishability of properties from one another, and he applies this to non-uniform properties as well. According to him, differences in price or description exist even in uniform properties and are not an obstacle to the realization of a partnership. Furthermore, the existence of benefit and the possibility of issuing permission in non-uniform properties indicates that the uniformity of contributions is not a necessity (p. 39).
• Simultaneous delivery of contributions; The author does not consider the simultaneity of the delivery of the parties' contributions as necessary and believes that, by accepting the partnership contract, the time and manner of presenting contributions can be specified through the agreement of the parties and the inclusion of conditions. This possibility is justifiable based on the general rules of contracts, similar to what is also seen in a sale contract (Aqd al-Bay') (p. 41).

Contracting Agreement and Order of Construction

In explaining the subject of contracting, the author raises five possibilities and examines them:

1. Building materials; The author rejects this possibility because materials are not the subject of the transaction and the buyer does not intend an independent transaction regarding them (p. 47).
2. Building: In this analysis, the employer buys the apartment with the descriptions provided by the contractor, as a fungible entity on the liability (Kulli fi al-Dhimmah) (p. 47).
3. Labor in the form of a lease: The subject of contracting is the executive operations of the contractor, the employer acts as the lessee, and the contractor acts as the hired employee (Ajir), and it makes no difference to whom the materials belong; because the principal element is the contractor's labor. The author answers the potential obstacles of this analysis (pp. 49-50) and accepts this possibility (p. 66).
4. Various subjects: According to this possibility, determining the subject of contracting depends on the manner of drafting the contract and the status of the contract (p. 53).
5. Manufacturing and delivery of goods as an independent contract: This analysis examines contracting outside the framework of sale and lease and as an independent contract; a perspective that has proponents among some contemporary jurists (p. 56).

Pre-Sale of Apartments and the Examination of Its Criteria

In the author's opinion, the pre-sale contract of an apartment differs from partnership and contracting contracts in the composition of the parties to the contract; in partnership and contracting contracts, one is the owner of the land and building and the other is the builder, but in a pre-sale, the non-owner buyer is the contracting party with the builder. According to him, the primary nature of this contract is the pre-sale of apartments under construction, which is known in jurisprudence under the title of "forward sale" (Salaf or Salam) (p. 67). He proceeds to apply the criteria of pre-sale regarding the pre-sale of apartments under construction:

• Permission of partners; The author emphasizes that in the pre-sale of apartments with joint ownership, the permission of other partners is necessary, and this requirement is the same across all types of partnerships (p. 71).
• The transaction object being known; In a forward sale (Bay' al-Salaf), the seller must clearly state to the buyer the complete specifications of the apartment, consumable materials, decorations, and other factors affecting the price (pp. 74-76).
• Receiving the price of the transaction object in the contract meeting; Although receiving the price of the goods in the contract meeting is considered one of the conditions of a forward sale (p. 76), the author considers this condition to lack a specific narrational basis, and views the jurists' reasons for proving it as based on personal reasoning (Ijtihad) and subject to criticism. He responds to the objections of the opponents and declares a forward sale without the immediate possession (Qabdh) of the price in the contract meeting to be valid (pp. 82-83).
• The sold object being fungible (Kulli); The author states the view of jurists regarding the necessity of the sold object (Mabi') being fungible (the invalidity of selling a specific entity in the form of a forward sale), but he does not consider this condition necessary, provided that the parties possess customary certainty regarding the possibility of delivery at the stipulated time (pp. 85-89).

Examination of Jurisprudential and Legal Rulings in the Construction Phase of the Apartment

In the second section of the book, the author engages in a jurisprudential examination of the rights and duties related to the construction phase of the apartment and presents these discussions within two chapters: construction criteria from the perspective of neighbors' rights and observing public rights in the construction phase.

Construction Criteria from the Perspective of Neighbors' Rights

The author refers to nuisances that do not damage the neighbors' property but cause the deprivation of their comfort and tranquility (such as creating noise and dumping garbage in public spaces) under the title of "non-damaging nuisances" (p. 95). The author considers it necessary to prevent non-damaging nuisances in construction and, for this purpose, suggests establishing workshops outside residential areas, using walls, temporary roofs, and sound insulation. In his view, operations whose execution is not possible without causing a nuisance either outside the city or inside it, are considered permissible based on necessity (pp. 95-96).

Fakhar Tousi, by examining the provisions of the No-Harm rule (Qa'idah La Darar), concludes that non-damaging nuisances are an instance of causing harm (Idhrar); therefore, by relying on the rule of negation of harm, one can rule on the prohibition of these nuisances (pp. 97-101). He further mentions the objection of some jurists who believe that due to the conflict between the harm of construction operators and the harm of neighbors, the No-Harm rule is not applicable. Opposed to this view are jurists who, relying on the narration "People have absolute authority over their properties," consider the owner free in his dispositions, even if it causes a nuisance. The author believes that the narration "People have absolute authority over their properties," although contrary to the evidence of the No-Harm rule, takes precedence over the rule; because the owner's harm is an initial harm and takes priority over the neighbor's harm, which is a secondary harm (pp. 103-109).

The Necessity of Preserving the Privileges of Neighboring Houses

The author emphasizes that construction operators are obliged to observe the privileges of neighboring houses; for example, the new building must be prevented from overlooking adjacent houses, and the No-Harm rule and narrations concerning the prohibition of an overlooking building signify this ruling (pp. 109-118). Maintaining the security of surrounding houses is also among the important criteria; if construction reduces safety and, for instance, leads to theft, the operator's actions will be an instance of causing causation (Tasbib) (pp. 122-123). Also, the easy access of adjacent houses to the public thoroughfare must be preserved, an obligation based on respecting the privacy (Harim) of neighbors (p. 124).

Observing Public Rights in the Construction Phase

Javad Fakhar Tousi considers thoroughfares to be public property and believes that private ownership does not apply to them. According to him, adjacent houses have a right of priority over their privacy bounds in the thoroughfare and can dispose of it as long as it does not obstruct transit. Regarding dead-end thoroughfares, he also believes that their space is at the disposal of the residents of those same units (p. 132). The author also states that creating balconies, porches, and protrusions in thoroughfares requires the observance of criteria; including the absence of opposition and objections from neighbors and pedestrians, preserving the view and lighting of the thoroughfares, preventing harm to traffic, obtaining the consent of residents in dead-end thoroughfares, and paying attention to the width of the thoroughfare (pp. 139–143).

He also raises regulations regarding the construction of entrance doors, such as restrictions on the width of the door, the prohibition of creating a new door in dead-end thoroughfares, and the prohibition of relocating a door in such thoroughfares (pp. 143–146). In the author's view, the installation of residential facilities in public thoroughfares must be such that the path of sewage and wastewater does not open into the thoroughfare; because this matter, in addition to disrupting traffic, will cause annoyance and harm to pedestrians (p. 146).

Construction Criteria from the Perspective of Governmental Laws and Regulations

The author believes the government can enact regulations in the field of housing construction and make their implementation mandatory for everyone. These laws must be approved by the elected representatives of the citizens and implemented with the support of state institutions; specialized experts also play a role in the process of formulating these regulations (p. 149). Among the important criteria is the obligation to deliver the apartment on the scheduled date, which, based on the principle of fulfilling the promise (Wafa' bi al-'Ahd), regardless of the type of contract (partnership, contracting, or pre-sale), necessitates the payment of delay damages to the buyer in case of a delay (pp. 163-164).

Transfer of Loans and the Methods of Assignment, Guarantee, and Agency in Apartment Transactions

In the third section of the book, the author examines contracts concluded between builders and buyers after the completion of apartment complexes. The author considers the sale of constructed apartments to have specific features; including the transfer of a loan, which can be accomplished in the forms of assignment (Hawalah), guarantee (Dhaman), and agency (Wikalah) in settlement (pp. 186-187). In the form of an assignment, referring to jurisprudential sources indicates that the consent of the lender, the financial capability of the third party or the acceptor of the assignment, and in case of his insolvency, the bank's awareness of his financial status are mandatory. Furthermore, the third party being in debt to the assignor prior to accepting the assignment is not a condition (pp. 187-188).

If a guarantee is utilized, the financial capability of the third party (guarantor) and, in case of his insolvency, the awareness of the beneficiary (the bank) regarding his financial status is necessary. Also, guaranteeing a deceased person is valid, and it is not necessary for the lender (the bank) to accept the guarantee of the third party (pp. 191-192). The author states that if agency is used for the transfer of a loan, the agency is placed as a condition within an irrevocable contract (Aqd Lazim) so that it becomes definitive and provides a guarantee regarding the payment of the loan by the buyer and the lack of responsibility of the seller in the future (p. 193). The author subsequently examines other contracts for the transfer of constructed apartments, including transfer by means of agency and settlement (Musalahah) (p. 196).

Jurisprudential-Legal Foundations of Joint Ownership and Its Consequences in Apartment Living

In the fourth section of the book, pointing to the differences between apartment and villa living, the author examines joint ownership (Malikiyyah Musha') as well as the obligations of residents of apartment complexes (p. 211). He considers joint ownership to be based on axes such as the existence of intrinsically determined property, the multiplicity of owners, the non-segregation of shares, and the attachment of a percentage of ownership to all components of the property (p. 213). Fakhar Tousi considers the cause of the emergence of joint ownership to be based on two constraints: 1. Being surrounded by several exclusive properties; 2. The conformity of the privacy (Harim) of each of these exclusive properties to a portion of the intended space (p. 225).

Relying on the criterion for the emergence of joint ownership, the author believes that the internal areas of each floor are within the joint ownership of the residents of that same floor, and others only have the right of passage and easement (Haqq al-Irtifaq); because these spaces are surrounded by the privacy of the exclusive properties of that same floor, and there is no reason for the joint ownership of others (p. 230). The author introduces the owner of the top floor as the owner of the rooftop; because only the properties of that same floor surround it, and the residents of other floors merely possess the right of easement and passage to access facilities. Regarding the courtyard as well, if at the time of transfer, its conveyance was considered jointly, its ownership is shared among all units; otherwise, only the residents of the ground floor whose properties surround the courtyard are considered its joint owners (p. 231).

In the author's belief, the factor stated for the emergence of joint ownership is a clear criterion regarding the obligations that the residents of various floors of apartment complexes have; therefore, providing what is needed for the passage and access of upper-floor residents (such as an elevator) is their own responsibility, and lower-floor residents have no obligation towards it. Likewise, the owners of apartments on each floor are responsible for the maintenance and repair costs of the facilities of that floor, such as water, gas, and sewage pipes, and electricity and telephone cables (pp. 236-237).