Question:
Assalamualaikum. As a homeowner, what is the ruling of me using the deposited money of the tenant without his permission? Should I ask for permission to use the money since it is a deposit? Does using deposited money without asking permission from the tenant considered as using others’ rights unlawfully? Is it wrong in the religion?
Brief Answer
Based on the above situation, the ruling of homeowner using the deposited money without the permission of the tenant is haram and invalid if the homeowner has no other money which is sufficient to replace the deposited money used.
However, there are situations which permits the homeowner to use the deposited money. Among them are:
- If the homeowner has sufficient money to replace the deposited money used, then the ruling is valid. The reason is, deposited money in the hand of the homeowner may be categorized as property without specific purpose; as long as the homeowner has other money of the same value with the deposited money and in cash, then he may use it.
- If the tenant withdraws or violates the contract which was mutually agreed, then the homeowner has the right to use the deposited money as compensation even without the permission of the tenant.
At the same time, it is advised for the homeowner to take the deposited money only to cover the loss while the remainders are returned back to the tenant. This approach is closer to the concept of adil and ihsan among human being.
Explanation
Deposited money or advanced payment is discussed by the scholars in the chapter Bai’ al-urbun (بيع العربون). Bai’ al-urbun is a form of trade in which the buyer pays some amount of money in advance. If the trade continues, then the advanced money will become part of the price. If not, this money will not be returned to him. This transaction other than takes place in trade, it also takes place in the contract of lease (al-ijarah) as it is also a trade of benefit.
Basically, trade by ‘urbun is invalid according to madhhab al-Shafi’e, madhhab Maliki and madhhab Hanafi. However, according to Dr Wahbah al-Zuhayli in his book, al-Fiqh al-Islami wa Adillatuhu (5/3434-3435), trade by ‘urbun is permissible according to the local custom. Besides, hadith which prohibits this kind of trade is not strong to the ahl al-hadith. Refer our article in the website Pejabat Mufti Wilayah Persekutuan - AL-KAFI #424 : HUKUM JUAL BELI SECARA URBUN (DEPOSIT) (muftiwp.gov.my)
Looking at the scenario of the Muslim community of today, this trade by ‘urbun is seen as a necessity especially in today’s time as a sign or form of commitment in signing the contract of trade. It is in the purpose of avoiding loss for both parties in the transaction; seller and buyer.
In this matter, Majma’ Fiqh al-Islami also has issued a decision regarding bai’ al-‘urbun that it is allowed and permissible. They said:
يجوز بيع العربون إذا قيدت فترة الانتظار بزمن محدود. ويحتسب العربون جزءاً من الثمن إذا تم الشراء، ويكون من حق البائع إذا عدل المشتري عن الشراء.
“Bai’ al-‘urbun is permissible if the period of waiting is tied with a limited time. The advanced money is included as part of the whole price when the payment is completed. And it (al-‘urbun) is owned by the seller when the buyer cancels the trade”.
(See: Majallah Majma’al-Fiqh al-Islami, 8/540)
Therefore, it is clear here that the homeowner has the right to take the deposited money by the tenant without having his permission if the lease is withdrawn and the contract is violated as mutually agreed.
Hence, we are of the opinion here that the buyer shall not claim their deposited money if:
- The withdrawal of the purchase or lease is caused by the tenant and not due to seller’s will.
- The deposited money is placed as the proof of the commitment based on mutual agreement.
The advanced money which will be owned by the seller is a compensation money (ta’widh) for the risk which will be endured by the seller like finding new tenant to fill within the remaining time before the contract ends.
However, if there is still a remaining money of the advanced payment after total loss is deducted, the seller is encouraged to return the remaining money to the tenant. This approach is closer to the concept of adil and ihsan among human being.
The Usage of Deposited Money before Violation or Withdrawal of the Contract
In this matter, if the deposited money is used before any violation or withdrawal of the contract, then the ruling is haram and invalid. This is because, the main reason it is permissible for the owner to use the deposited money and becomes valid is only when the tenant withdraws or violates the contract mutually agreed. If conversely happens like the tenant still continues the contract and pay monthly rental as usual, then the homeowner has no right to use it.
Deposited money in this condition acts as a security. So, using it without the permission of the tenant which is as a security makes it invalid and revoked according to madhhab al-Shafi’e. Conversely, if the tenant allows, then the homeowner may use the money. At the same time, the contract of security is automatically annulled because the money meant for security already decreases or finishes being used.
(See: al-Mu’tamad fi al-Fiqh al-Syafie, 4/387-388)
The reason of the annulment of the contract is depending on the status of the security property which is still owned by the tenant that has made as security if he fails to pay the monthly rental. So, the usage of the money needs permission from the one who puts the security which is the tenant. If not, it is considered as using the rights of others without permission.
Based on the above question, the money is used without the permission of the tenant. So, it is an obligation of the homeowner to return the security money, in fact, homeowner is considered indebted to the tenant in this matter. Such setting is made because if it is permissible to use the money without the permission of the original owner, then the concept of guarantee and security fades especially when it involves a huge amount of money.
The prohibition is exempted if the homeowner has other money which is sufficient to cover the deposited money used. This is because, cash money may be categorized as mithli property. Mithli property as written by Syeikh Wahbah al-Zuhayli in his book, al-Fiqh al-Islami wa Adillatuhu, (4/2885) is a property that has similarity with other property in term of its form and value like wheat, rice, eggs and etc. In addition, deposited money in the hands of the homeowner is not specified.
Besides, as long as the homeowner has other money with the same value of the deposit and in cash form as to cover the deposited money used, so, it is permissible for him to use it. However, if he has no other money with equivalent value with the deposit, then it is haram to use it without having the permission.
In addition, there are some possibilities related to the rights of the tenants and homeowner. For example, tenants have the right to get back his deposited money without any problem. The same goes for the homeowner in which he has the right to receive it if there is a withdrawal or violation of contract committed by the tenant. Hence, the deposited money shall be made permanent of its status which is as the security money until the contract ends or when there is withdrawal.
Lastly, may Allah SWT give understanding to us all in understanding the rulings related to communicating among humans. Also, honor us with ihsan, helping one another as well as good deeds.
Wallahu a’lam.