Question
When it comes to gifting a home or property to some one, the Fuqahaa say that the home/property should not be occupied by the givers possessions and the gift will not be valid if there are possessions of the giver therein.
ﻭﻣﻨﻬﺎ ﺃﻥ ﻻ ﻳﻜﻮﻥ اﻟﻤﻮﻫﻮﺏ ﻣﺸﻐﻮﻝا ﺑﻤﺎ ﻟﻴﺲ ﺑﻤﻮﻫﻮﺏ ﻷﻥ ﻣﻌﻨﻰ اﻟﻘﺒﺾ ﻭﻫﻮ اﻟﺘﻤﻜﻦ ﻣﻦ اﻟﺘﺼﺮﻑ ﻓﻲ اﻟﻤﻘﺒﻮﺽ ﻻ ﻳﺘﺤﻘﻖ ﻣﻊ اﻟﺸﻐﻞ ﻭﻋﻠﻰ ﻫﺬا ﻳﺨﺮﺝ ﻣﺎ ﺇﺫا ﻭﻫﺐ ﺩاﺭا ﻓﻴﻬﺎ ﻣﺘﺎﻉ اﻟﻮاﻫﺐ ﻭﺳﻠﻢ اﻟﺪاﺭ ﺇﻟﻴﻪ ﺃﻭ ﺳﻠﻢ اﻟﺪاﺭ ﻣﻊ ﻣﺎ ﻓﻴﻬﺎ ﻣﻦ اﻟﻤﺘﺎﻉ ﻓﺈﻧﻪ ﻻ ﻳﺠﻮﺯ ﻷﻥ اﻟﻔﺮاﻍ ﺷﺮﻁ ﺻﺤﺔ اﻟﺘﺴﻠﻴﻢ
بدائع الصنائع
If the giver in our time changes ownership to the name of the given will that be sufficient for the validity of the gift even without removing her/ his possessions from the house?
Answer
Legally transferring any property onto the recipient’s name does not make the recipient the owner of the property in terms of Shariah. The procedure mentioned in the quoted text of the Fuqaha whereby the donor is required to remove his belongings before gifting the property is necessary, failing which the property remains in the possession of the original owner in terms of Shariah, even though legal transfer may have been effected.
An easy way of overcoming this issue is by simply selling the property for a meagre sum (such as R100.00) to the intended recipient (of the gift). A sale of a property concluded and finalized in spite of the goods of the seller remaining on the property, is valid in terms of Shariah. The purchaser will therefore become the owner of the property on conclusion of the sale.
However, you should bear in mind that a formal sale is required (whereby the seller proposes to sell his property for an amount of R100.00 to the purchaser and he in turn accepts the proposal and pays the stipulated purchase price).
Checked and Approved By:
Mufti Muhammed Saeed Motara Saheb D.B.