Is preemption applicable to a pathway (Tariq) connected to a sold house?
General Chapter
Al-Mughni
Book of Preemption (Shuf'ah)
Primary text
If a sold house has a pathway leading into a public street or an accessible alley, there is no preemption in that house or the pathway, as no one shares ownership therein. If the pathway is in a blind alley and it is the only access to the house, preemption is also denied because establishing it would harm the buyer by leaving the house without access. However, if the house has another accessible door or a point where a door can be opened to a public street, the ruling depends on the pathway itself. If the pathway is an un-divisible passage, there is no preemption; if it is divisible land, preemption is obligatory as it is shared land capable of division.
Supporting text
A potential view is that preemption is never obligatory in the pathway because transferring the path to the pre-emptor causes harm to the buyer by altering the required path and splitting the buyer's single transaction by taking part of the real estate. The ruling for a neighbor's hallway or courtyard is similar to that of the pathway. If the buyer's share of the pathway is more than he needs, one view suggests preemption is obligatory on the excess due to the presence of the cause and absence of an impediment. The correct view, however, is that preemption does not apply to the excess because establishing it entails dividing the buyer's transaction, which inevitably causes harm.