Can the purchaser remove planted trees and constructed buildings from a pre-empted share after the preemption has been claimed?
General Chapter
Al-Mughni
Book of Preemption (Shuf'ah)
Primary text
If the purchaser planted or constructed on the pre-empted share and the pre-emptor subsequently claims the share after division, the purchaser has the right to uproot his planting and demolish his construction, if he chooses. This right stems from the fact that the planting and building belong to him, and any resulting defect in the land is his own loss, for which no compensation is due, as established by the Shafi'i madhhab. The removal of planting and construction for which there is no defect in the land itself is permissible.
Supporting text
The apparent view of al-Kharqi suggests the purchaser is liable for the resulting defect in the land upon removal, based on the condition that removal causes no harm. This is analogized to causing damage to another's property to recover one's own debt. Al-Kharqi implies that the defect caused by removal affects the pre-emptor's property, necessitating compensation, contrary to the view that the defect is only in the purchaser's property (the planting/building).