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Fatwa CenterThe inheritance of what is built on borrowed land
Question
A man had son and daughters. A piece of land was in the name of his son. The father intended to construct a house on this land. Before constructing the house, he told his son to transfer the land in the name of the father and that afterwards, after passing away, the whole land and house would belong to that son only. The son transferred the land in the name of the father, and the father constructed the house. Now the father passed away. Do the land and the house belong to the son only now? Other inheritors, in this case daughters only, do not raise any objection to the son occupying the land and the house.
Answer
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah and that Muhammad 
is His slave and Messenger.
If the land was originally owned by the father and not by the son, and if registering it in his [son’s] name was nothing but a mere registration on paper, or if the father had gifted it to his son and then took the gift back, then in both cases, the land and the house that is on it are considered an inheritance that should be divided between all the heirs according to the sharee'ah, and the son has no right to appropriate it apart from the other heirs.
However, if the land was originally owned by the son, and not owned by the father, then the father building on it is considered as 'aariyah (a borrowed item), and this 'aariyah ends by the death of the borrower, who is the father here, according to the view of the majority of the scholars. The Fiqh Encyclopedia reads:
“The scholars differed in opinion about the outcome from the death of the person who borrowed benefits regarding the entitlement of these benefits into two views:
1- The view of the Hanafi, Shaafi’i and Hanbali Schools, which is that the right of the borrower in the borrowed item is a personal right, which ends with his death, and it is not transferred to his heirs. Therefore, the borrowed item becomes invalid by the death of the borrower, and his heirs are obliged to immediately give it back to its owner, even if the latter did not ask for it.
2- The second view: which is the view of the Maaliki School, is that the borrower has the right to benefit from the borrowed item, regardless of whether it is restricted with a given period of time or unrestricted, in the specified period or in the period during which people benefit from it generally [according to the custom] when it is not restricted. Therefore, if the borrower dies before the end of that period, then his right from benefitting from it in the remaining period is not nullified by his death; rather, it is transferred to his heirs, except in one case, which is when the lender conditions that only the borrower benefits from it, in which case the remaining period is not inherited from him, as it is considered a personal right.” [End of quote]
If we say that the loan ends with his death, then the value of the building should be determined and the son should pay its value to the heirs – and he is one of the heirs – and then the house becomes owned by him. But should the building be valued as completely built or as destroyed; then there are two opinions of the Maaliki School; the well-known opinion is that it should be valued as destroyed. This is the view that we have adopted before. The other view is that it should be valued as complete, as long as the father had built it in the land of his son with his permission or his knowledge. This is what was narrated from the scholars of Madeenah, the companions of Maalik, from him 
. This view is considered, and it is fair as a way of taking the circumstances of the builder into consideration.
Az-Ziyaadaat wan-Nawaadir of Ibn Abi Zayd al-Qayrawaani reads: “Ibn Habeeb said in Kitaab As-Sadaqaat: Mutarrif and Ibn Al-Maajishoon said, 'Maalik said, 'Whoever builds on the land of a people or planted a plantation with their permission or knowledge, and they did not prevent him, then he deserves its value as completely constructed, like the one who built out of doubtfulness…''” [End of quote]
The saying of the father that the house becomes the property of his son after his death is of no consideration because this is a will for an heir, and the will for an heir is forbidden and does not take effect unless all the remaining heirs approve of it. If the daughters do not agree with it, then they are entitled to their share from the value of the building, as we have mentioned.
It should also be noted that this will cannot be confirmed just with your claims that your father had made a will of the house for you.
In case of dispute and disagreement, the matter should be taken to an Islamic court, if any, or one should orally ask the scholars who are befitting to judge in such matters.
Allaah knows best.
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