Leasing waqf assets

Who may lease the waqf?

Leasing the waqf property is lawful by agreement, and the right to authorise belongs to the manager (nazar), named by the founder or installed by the judge. The designated beneficiary holds only his free enjoyment: Hanafis deny him leasing, save a founder's clause or the judge's leave; Shafiites let him lease his enjoyment share only if he himself is the manager or the manager permits it; Malikis refuse leasing a waqf made to a specific person for personal enjoyment.

Rent below the market

Agreement: leasing the waqf below the like's rent without necessity is not permitted. Consequences separate: Hanafis validate the contract and make the tenant pay the complement up to the like rent; Malikis make the manager guarantee the difference, or revoke in favour of a second tenant offering more; Shafiites void the contract. The beneficiary himself may lease to himself or others per Shafiites and Hanbalis. Necessity opens the exception: no taker at market price, ruin to rebuild, a repair debt weighing on the waqf.

The lease's duration

The founder's condition is followed by agreement of the 4 schools, save necessity; one Shafii way rejects it as constraining the beneficiary. Without a clause: Hanafis bound land to 3 years and house or shop to one, the judge alone exceeding for the waqf's benefit; Malikis: 2 or 3 years on a waqf with specific beneficiaries, more on a public-interest waqf; Shafiites and Hanbalis follow each property's custom: land 100 years, a house 30, a mount 10. Necessity lifts every limit: in the time of judge Ibn Badis at Kairouan, a collapsed waqf house was leased for long years against rebuilding it. Ibn al-Qayyim denounces the trick of successive leases signed in one sitting to reach a 100 years, evading the founder's clause (I'lam al-Muwaqqi'in).

Rent rising mid-lease

The majority: a contract signed at the market rent is not undone because the market later rises, the deal having been made in good faith at its date. Retained Hanafi view: when the rise becomes outrageous, the manager dissolves the lease and renews it with the same tenant accepting the increase. One Shafii way admits rescission upon a credible claim; another limits that effect to leases of a year at most.