Is preemption applicable to indivisible real estate, such as small public baths or small mills?
General Chapter
Al-Mughni
Book of Preemption (Shuf'ah)
Primary text
For real estate that cannot be divided, such as a small public bath, a small mill, a narrow passage ('Adadah), or narrow courtyards, there are two narrations from Ahmad. One holds that there is no preemption, which is the view of Yahya ibn Sa'id, Rabi'ah, and Al-Shafi'i. The basis for denying preemption here is the Prophet's saying: 'There is no preemption in a courtyard (fina'), a pathway, or a narrow passage (manqabah).' Furthermore, establishing preemption in such cases harms the seller because he cannot escape the implication of preemption through division, and the buyer might refuse the sale due to the pre-emptor, potentially causing the sale to lapse and thus nullifying the preemption itself.
Supporting text
The second narration attributes preemption to these items, held by Abu Hanifa, Al-Thawri, and Ibn Surayj, based on the general phrasing 'Preemption applies to what has not been divided,' because the harm of co-ownership is greater in such indivisible properties. If the item can be divided without detriment, such as a large bathhouse or a well that can be divided into two functional units, preemption is obligatory. Similarly, if a well has surrounding land allowing division so the well falls entirely within one share, preemption is obligatory because division is possible.