Section One
Ownership of Wasteland (Mawāt)
by Restoration, Cultivation.. etc (Ihyā’)
787. What is meant by Mawāt land is the neglected land that has no plants, buildings, walls, nor clearing from wild plants or stones, nor farming; it has many types:
1- Land that has never had life or building on it throughout its history, or on which we know of no life throughout its known history, such as most wilderness land, mountains and deserts in the different Muslim countries; these are called ‘originally barren land/wasteland’.
2- Land that was neither a wasteland nor inhabited when the Muslims conquered that country; this includes areas of forest once full of trees, but then these trees disappeared due to various factors, turning the land into wasteland.
3- Land that was the inhabited homeland of past nations, then their people perished, or migrated from it, and then they became, with the elapse of a long time, a property without owner, such as ruins of villages and towns, covered tunnels etc.
788. The three mentioned types are regarded amongst the ‘anfāl’ (spoils) and they are in the ownership of the infallible Imam (as), i.e. the righteous state, and it is a type of ownership that does not contradict the fact that it is free for any person who has definitely carried out what is known as ‘ihyā’’, i.e. by putting the effort into that land to make it introduce to it housing, agriculture, water or the like; so if someone restores, cultivates etc such a land, he becomes its owner without the need for the permission of the Islamic authority acting in the capacity of the Imam (as) during his occultation.
789. It is allowed for the state to stop certain individuals from ihyā’ any land, or a certain land, also to prevent all people from ihyā’ a certain area; in fact the Shari’ah prohibited the ihyā’ of certain areas such as river and village boundaries.
790. No ihyā’ has taken place, nor any of its consequences, by the mere starting of the building work on the land, but the work must reach a degree where it can be said that it is a house, a farm or any other building type. However, the mere starting is regarded as justification for exclusion (tahjir), which gives the person priority over others, so they cannot compete with him.
791. Priority in this exclusion exists if the person is capable of carrying out its building and ihyā’, so if he is not capable at the outset, or becomes so later, he loses the right and it becomes allowable for others to carry out ihyā’. The same applies if the person has made exclusive to him a land that is bigger than his capabilities; in this case the claim for the excess amount is not valid.
792. The period between the start of exclusion and ihyā’ has to be reasonable so that any delay in it is not regarded as negligence and inactivity. So if the person neglects the ihyā’ and the period stretches out for a long time and someone else wishes to carry out ihyā’, this other person cannot do so until he has turned to the Islamic authority or his authorised representative; then it is for the authority to encourage the person to carry out the ihyā’ or to leave the land; if the latter now presented an excuse, he may be granted extension until the excuse loses its validity or he starts with the building, but then if the excuse no longer holds and he has not done any work, the land will be taken from him, and he will forfeit his right, and it becomes free for others to carry out ihyā’. But if the Islamic authority or his authorised representative is not available, or if they are available but cannot practise their authority, it seems that the person would lose his right to claim if he has neglected it to an extent that is commonly regarded as inactivity; it is better to allow him three years.
793. If a piece of land becomes a wasteland after it was inhabited or built on, its ruling differs according to its type, as follows:
First: If the land was a wasteland that went into ownership by ihyā’ then became a wasteland again after being inhabited or built on, or if it was inhabited or built on then became a wasteland and later was restored etc (by ihyā’) then became a wasteland again, and in both cases there was a known owner, here are several situations:
a- It became a wasteland was because its owner abandoned it and lost interest it, in this case ihyā’ is allowable to anyone interested.
b- It became a wasteland intentionally so as to benefit from it as grazing land for animals or from its wild plants, such as cane… etc, in this case the owner stays in control and no one can compete with him.
c- It became a wasteland due to a lack of financial means or suitable circumstances to carry out ihyā’ appropriately, in this case it stays with the owner without challenge.
d- It became a wasteland due to the owner's negligence and insistence on not carrying out ihyā’; here if it had gone into his ownership by possession and ihyā’, his right would be forfeited and his ownership is invalidated and it becomes allowed for others to carry out ihyā’; however, it is an obligatory precaution to return it to its original owner if he is interested in it and requested it. But if it had gone into his ownership by buying or inheritance, then it is an obligatory precaution to keep it with its owner and not to allow its ihyā’ by others or to allow disposal of it without his permission; so if another person carried out ihyā’ and planted it, he must pay rent to the owner as an obligatory precaution.
Second: The same case above, but the difference is that the land has unknown ownership, in this case the ruling is that if it is known that the owner had lost interest in it and abandoned it, it returns to its free status, making it open to others to carry out ihyā’. Otherwise a search must take place for its owner as an obligatory precaution and if after losing hope of finding him, one must turn to the Islamic authority to determine how to dispose of this asset of unknown ownership; in this case it is up to the Islamic authority to sell it to whoever is interested in buying it and to spend the proceeds on the poor, or to rent it and give away its rental income as alms, or to dispose of it in other ways that he sees suitable.
Third: If the land was owned in common by all Muslims, either because it was inhabited when conquered by force or because it was conceded to Muslims without fight, whether the one who had the right of disposal is known or unknown, in this case if it becomes a wasteland, it returns to its free, allowable status, and is not regarded as owned by all Muslims any longer, so it can be owned then by whoever carries out ihyā’ without the need to seek the permission of the Muslims' guardian or authority.