What are the options for the pre-emptor when the purchaser has planted or built upon the pre-empted share and refuses to remove the structures?
General Chapter
Al-Mughni
Book of Preemption (Shuf'ah)
Primary text
If the purchaser does not choose to remove the planting and construction, the pre-emptor has three choices: to abandon the preemption; to pay the value of the planting and construction and thereby own them along with the land; or to compel the removal of the planting and construction and compensate the purchaser for the defect caused by the removal. This latter option is supported by Shu'bi, Awza'i, Ibn Abi Laila, Malik, Layth, Shafi'i, Al-Batti, Suwar, and Ishaq.
Supporting text
Hammad ibn Abi Sulayman, Thawri, and the Ashab al-Ra'y (companions of opinion) rule that the purchaser must remove the structures at his own cost with no compensation, likening him to a usurper who built on land he did not rightfully own. The supporting argument against compensation is based on the Hadith, 'There should be neither harming nor requiting harm,' and the principle that a wrongful possessor has no claim.