Islamic Law of Transaction: Can a Lessee Transfer or Sublease the Usufruct Without the Lessor’s Permission?

The starting point for all four madhhabs is important:

In a valid ijarah (lease), the lessee acquires a legal right/ownership over the agreed usufruct (manfa‘ah) for the lease period.

For example:

Ali → owns the house

Ahmad → rents it for 3 years

Therefore:

Ali owns the physical house

Ahmad owns the 3-year residential usufruct

Because Ahmad owns the benefit, he may generally use it himself or, subject to the rules below, allow another person to enjoy the same or less harmful benefit. The majority of jurists permit a tenant to sublease to another person where the second user’s use is equivalent or less harmful. 

1. First: What Does “Transfer or Sell the Usufruct” Mean?

The lessee cannot sell the physical house, because he does not own it.

But he may potentially transfer his right to use the house.

This could happen:

Without payment

Ahmad tells Yusuf:

“You may live in the apartment instead of me.”

This is transferring or allowing another person to enjoy the benefit.

With payment

Ahmad tells Yusuf:

“Pay me RM1,500 per month and you may live here.”

This is a:

Sublease

So when we say the lessee can “sell the usufruct,” it is clearer to say:

He may sublease or transfer his leasehold benefit.

He is not selling the physical property.

2. The General Rule: Same Use or More Harmful Use?

Before discussing the madhhabs, ask:

Will the new user use the property in the same way as the original tenant?

Same or less harmful use

Example:

Ahmad rented a house for ordinary residential use.

Yusuf will also use it as an ordinary residence.

Generally:

substitution/sublease may be permitted.

More harmful use

Ahmad rented it as a home.

Yusuf wants to turn it into a metalworking factory.

Now:

residential use → heavy industrial use

This creates more wear and possible damage.

The lessee cannot simply transfer that greater use without the owner’s permission. Classical Hanafi material, for example, expressly allows another person to occupy the premises where use does not vary by the user but prohibits uses such as blacksmithing or milling when they would harm the building. 

3. Hanafi View

The Hanafis strongly connect the rule to ownership of usufruct.

Once Ahmad leases the house, he owns the agreed benefit.

Therefore, where use does not materially differ according to the user, he may generally:

• use it himself,
• let another person use it,
• sublease it.

Classical Hanafi texts state that a tenant of a house may house another person by lease or loan where the use is of the same kind and does not cause additional harm. 

Example

Ali leases an apartment to Ahmad for ordinary residential use.

Ahmad subleases to Yusuf.

Yusuf also uses it normally as a residence.

Under the classical Hanafi principle:

Ahmad owns residential usufruct

↓

Yusuf extracts the same residential benefit

↓

generally permissible

4. What If the Hanafi Landlord Says “You Personally Must Live Here”?

This is where the Hanafi position becomes particularly interesting.

According to a classical Hanafi rule reported in the fiqh encyclopedia, if the landlord says:

“You may live here, but no one else may live here,”

and the identity of the resident makes no legal difference to the use, the Hanafis treat such a restriction as ineffective while keeping the lease valid. 

Why?

Because the tenant acquired:

the residential usufruct

not merely:

personal permission to enter the house

So where:

Ahmad’s residential use = Yusuf’s residential use

the landlord normally has no meaningful property-protection reason for distinguishing them.

5. But Modern Hanafi Contracts Need Caution

There is an important practical qualification.

Contemporary Hanafi scholars differ in applying contractual “no subletting” clauses. Some maintain the classical rule that subleasing is permissible if there is no extra harm, while others require the tenant to honor an express contractual prohibition. Compare contemporary Hanafi rulings allowing subletting in principle with rulings requiring compliance with a signed no-sublease condition. 

Therefore, for study purposes:

Classical Hanafi rule: same usufruct can generally be transferred without fresh permission.

But for a real modern lease:

A written no-sublease clause and local law should not simply be ignored.

6. Hanafi Rule About Making Profit From a Sublease

The Hanafis have another special rule.

Suppose:

Ali charges Ahmad:

RM1,000

Ahmad subleases to Yusuf for:

RM1,500

Classical Hanafi law places restrictions on Ahmad keeping the extra RM500 where the rent is in the same kind/currency and Ahmad has added nothing to the property.

If Ahmad made an improvement or added something of value, or the second rent is of a different type, the ruling may differ. 

So:

Hanafi: subleasing itself may be valid, but profiting from the rent has additional rules.

7. Maliki View

The Malikis also recognize that the lessee owns the usufruct.

The majority position, including the Maliki school, allows the lessee to sublease the property to another person for:

• the same rent,
• a lower rent,
• or a higher rent,

provided the second user’s use is not more harmful than the original permitted use. 

Example

Ali rents a shop to Ahmad.

Ahmad subleases it to Yusuf.

Both operate the same type of light retail business.

Generally:

permissible under the Maliki approach.

8. What If the Maliki Lessor Expressly Prohibits Another User?

Here the Maliki position differs from the classical Hanafi position.

The Malikis generally give greater effect to an express condition specifying that another person may not occupy/use the property, apart from what normal custom allows. 

So if Ali says in the contract:

“Ahmad alone may occupy this property; it may not be transferred to another person,”

the Maliki approach generally treats that condition as legally significant.

Therefore:

Maliki

No restriction in contract + same/less harmful use:

sublease generally permitted

But:

Express valid restriction:

must generally be respected

9. Shafi‘i View

The Shafi‘is also generally permit the lessee to sublease because the lessee owns the benefit for the lease period.

The Shafi‘i school is part of the majority permitting sublease for:

• equal rent,
• lower rent,
• higher rent,

provided the second use is not more harmful. 

Example

Ahmad rents a house for RM1,500.

He subleases it to Yusuf for RM2,000.

Under the general Shafi‘i rule, the higher sublease rent itself does not create the Hanafi problem concerning the surplus. 

10. What If a Shafi‘i Lease Says “Only You May Use It”?

The classical Shafi‘i treatment is different again.

A source summarizing the madhhab positions states that where the landlord imposes a condition that the tenant may not allow another equivalent user to occupy the property, the Shafi‘is may regard the condition—and in that formulation the lease itself—as defective, because it contradicts the normal effect of the usufruct that the lease transfers. 

The logic is roughly:

Lease gives usufruct

↓

usufruct normally includes lawful enjoyment of that benefit

↓

a condition removing an essential consequence of the lease may cause a contractual problem.

So the Shafi‘i answer is not simply:

“The condition is valid and tenant must obey.”

There is a deeper issue about whether that condition itself is legally valid.

11. Hanbali View

The preferred/stronger Hanbali position also permits the lessee to sublease to someone whose use is equivalent or less harmful.

Classical Hanbali sources cited in comparative discussions permit a lessee to lease the property to someone who takes his place, and the preferred Hanbali view permits the second rent to be:

• equal,
• lower,
• or higher. 

There is also another reported Hanbali view restricting profit on the sublease, but the more prominent position permits it. 

12. What If the Hanbali Lessor Forbids Subleasing?

The Hanbalis generally give legal weight to an express condition imposed by the lessor.

The fiqh encyclopedia summary groups the Malikis and Hanbalis together in recognizing a condition that another person may not occupy the leased property, subject to customary exceptions. 

Therefore:

Hanbali

No restriction + same/less harmful use:

sublease generally allowed

But:

Valid express no-transfer/no-sublease condition:

generally must be respected

13. So Does the Lessee Normally Need Fresh Permission?

If there was no restriction in the original lease, and the second person will use the property in the same or less harmful manner, the general classical rule is:

Fresh permission from the lessor is normally not required simply because the user changes.

This follows from the fact that the lessee has acquired the usufruct, rather than receiving only personal permission. The majority permits subleasing where the second use is no more harmful. 

Example

Ali rents Ahmad an apartment for ordinary residential use.

Nothing is said about subleasing.

Ahmad subleases to Yusuf.

Yusuf also uses it normally as a residence.

Generally:

Ali’s fresh permission is not required merely because Yusuf is now the resident.

14. But If Use Changes, Permission Is Needed

Suppose Ahmad rented a building as:

ordinary residence

and wants Yusuf to operate:

a metal workshop

Now the change creates greater wear or risk.

In this situation, Ahmad’s usufruct does not automatically include that heavier use.

Therefore:

The owner’s permission is required.

The Hanafi sources expressly distinguish ordinary interchangeable residential use from damaging trades, and the majority sublease rule similarly requires the new user to cause no greater harm. 

15. The Four Schools in the Simplest Form

Hanafi

Same use / no extra harm

→ generally may transfer or sublease the usufruct.

→ classical Hanafi law may disregard a personal-use-only restriction where identity makes no difference.

→ special Hanafi restrictions apply to keeping a higher sublease rent in the same currency unless value was added. 

Maliki

Same or less harmful use

→ generally may sublease.

→ may normally charge equal, lower, or higher rent.

→ an express valid restriction by the lessor generally matters. 

Shafi‘i

Same or less harmful use

→ generally may sublease.

→ may normally charge equal, lower, or higher rent.

→ a condition improperly restricting the normal usufruct may itself create a validity problem for the condition/lease under the classical formulation. 

Hanbali

Same or less harmful use

→ preferred position generally permits subleasing.

→ preferred view permits equal, lower, or higher rent.

→ an express valid prohibition is generally respected. 

16. Why Is Lease Different From Simple Loan?

This now connects perfectly with the earlier topic.

Lease

The lessee receives:

ownership of usufruct

• ●

binding contract

Therefore he has a strong legal interest in the benefit and may generally transfer that benefit within its lawful limits.

Simple Loan — Hanafi/Maliki

Borrower receives:

usufruct

but through a:

non-binding contract

Therefore he may re-lend but cannot create the stronger binding lease from that weaker right.

Simple Loan — Shafi‘i/Hanbali

Borrower receives:

personal permission to use

Therefore he normally cannot re-lend without authorization.

17. Best Rule to Memorize

In a lease, the lessee owns the agreed usufruct, so all four madhhabs generally recognize some ability to let another person enjoy or sublease that usufruct where the new use is the same or less harmful. The major differences concern contractual restrictions and sublease profit: Hanafis are especially permissive about interchangeable users but restrict certain sublease profits, while Malikis and Hanbalis generally give greater effect to an express no-sublease condition, and the Shafi‘i school treats some restrictive conditions as inconsistent with the lease itself.

For an exam, the shortest useful formula is:

Lease → usufruct is owned → same benefit can generally be transferred → greater/different harm requires owner’s permission → explicit no-sublease conditions produce madhhab differences.