Painting a rented house when vacating
| Fatwa #873 | Category: Business & Trade | Country: Zambia | Date: 25th July 2023 |
| Fatwa #873 | Date: 25th July 2023 |
| Category: Business & Trade | |
| Country: Zambia | |
Question
Assalamualaikum w w Mufti Saheb.
*There is a Mas’ala I wanted to find out. We have houses which we give on rental . When we get a new tenant, we sign a 1 year lease agreement with them (a contract ) . One of the clauses in the contract is that “The tenant upon vacating will repaint the house INTERNALLY with two coats of paint of a suitable quality which is acceptable to the landlord in a workman like manner “
When we sign the lease / contract, we take the amount equivalent to one month’s rental as security deposit which is fully refundable when the tenant is vacating if there is not any dmamage to fix or anything else to do in the house.
*So the case here is that we gave 3 houses on Rent to 3 brothers in the same yard . 2 of them moved-in in the month of January 2023 and the 3rd one moved-in in February 2023 and when they all moved in, all the 3 houses where given to them internally FRESHLY NEWLY PAINTED just before they moved in.
*Before signing the contract , they had showed abit of discomfort to sign because of the painting clause , but I did explain to them that we will give you internally freshly painted houses and in return we expect them to be internally freshly painted when you vacate as we got to give internally freshly painted houses to the new tenants who will move in after you vacate and after that they happily signed the contract.
*Arround the end of April one of the brothers had messaged saying that they want to leave the houses at the end of June and we also gave them a written notice to vacate the houses at the End of June.
*Just few days before they vacated , I had also reminded them by message regarding the clause of internally painting to which they did not reply anything.
*After they vacated the houses, I inspected the houses, they was no damage in it and everything was accordingly except that they did not paint them. I informed them regarding this and they replied saying that the houses did not need any painting as they had left the houses clean. I stressed the point to them that we had given you the houses internally freshly painted before you moved in and that we had signed the contract and the clause was in the contract and you had happily signed the contract , but they did not agree to my point. I also informed them that since they did not paint the houses, I will paint them at their cost deducting money from the security deposits they had given me after moving in which upto now I have not refunded them because of the same painting matter . I told them that I will paint the houses internally with that money and present all the painting costs reciepts and refund them their Balance of security deposits after the painting is done. That also they refused to agree and claimed that it will be haram for me to do that as sharee’ah doesn’t permit that and they brought in other issues that I had promised them, somethings like making a separate bathroom and toilet for my caretaker who works there taking care of the garden as he and his family use the same bathroom and toilet which all the workers working in the tenants flats use as we have built a sperate bathroom and toilet for the workers to use working in the flats, increasing wall fence on 2 sides and putting elctric fence and also wall lights l. I don’t refuse that I did not promise them these things. I did promise them, but I clearly told them that i will do all this slowly slowly after the rains are done and when I have funds for doing all those works .
*Hence I write this to you to guide me on this matter as in our community (Urf) , such contracts are signed by the tenants and landlords and they are abided by both parties. We had such agreements with our previous tenants and we had no issues at all.
Kindly waiting for your response
Jazakumullaah
Answer
In the Name of Allah, the Most Gracious, the Most Merciful.
As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.
In principle, a rental (ijarah) contract is valid when both the lessor and lessee agree to the terms and conditions of the rental agreement. [1]
Shari’ah has categorised terms and conditions as follows:
- Conditions that are linked to the fundamentals of the contract being signed. Such conditions are valid and binding in a contract.
Example: the lessor stipulates that the lessee cannot sublet a property without his consent.
- Conditions that are not linked to the fundamentals of the contract and may impose additional costs on one party, or are only to the benefit of one party, not the other.
Such conditions are not permissible by default.
Example: the lessor stipulates that the lessee will bear the cost of ground rent and rates on the property.
Ground rent and rates are the sole responsibility and cost of the owner of a property, therefore, it cannot be transferred to the tenant.
However, in the event such a condition becomes customary amongst the people and is treated as a norm, such that agreements are seldom free of it, and neither party in a contract opposes it when initially entering into the contract, then such a condition will also become binding on both parties of a contract. [2][3]
In the enquired scenario, the clause of repainting the interior of a property is one we deem to be accepted as customary practice and therefore binding on the tenants.
Furthermore, a security deposit exists to allow the landlord to deduct any contractual expenses the tenant is unable to pay.
Therefore, in the event the tenants do not paint the interior of the house, the landlord has the right to deduct the expenses of painting from the security deposit.
And Allah Ta’āla Knows Best
Mufti Ikraam Gangat
Concurred by
Mufti Bilal Pandor
Darul Iftaa Mahmudiyyah
Lusaka, Zambia
البحر الرائق شرح كنز الدقائق ومنحة الخالق وتكملة الطوري – كتاب الإجارة (8/ 3) [1]
وأما ركنها فهو الإيجاب والقبول والارتباط بينهما
الدر المختار وحاشية ابن عابدين (رد المحتار) (4/ 364) [2]
وفي شرح البيري عن المبسوط أن الثابت بالعرف كالثابت بالنص
البناية شرح الهداية (8/ 180) [3]
ومن باع عبدا على أن يعتقه المشتري أو يدبره أو يكاتبه أو أمة على أن يستولدها، فالبيع فاسد؛ لأن هذا بيع وشرط، والنبي – صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ – نهى عن بيع وشرط، ثم جملة المذهب فيه أن يقال: كل شرط يقتضيه العقد، كشرط الملك للمشتري لا يفسد العقد لثبوته بدون الشرط، وكل شرط لا يقتضيه العقد وفيه منفعة لأحد المتعاقدين، أو للمعقود عليه، وهو من أهل الاستحقاق يفسده كشرط أن لا يبيع المشتري العبد المبيع؛ لأن فيه زيادة عارية عن العوض فيؤدي إلى الربا، أو لأنه يقع بسببه المنازعة فيعرى العقد عن مقصوده، إلا أن يكون متعارفا لأن العرف قاض على القياس، ولو كان لا يقتضيه العقد، ولا منفعة فيه لأحد، لا يفسده، وهو الظاهر من المذهب