I have heard that the area below and above the Mosque is considered part of the Mosque, is that true? Therefore, will it be allowed for a committee of a Mosque to built flats above the Mosque and give them out on rent? I intend to hire a flat which is built above a Mosque, can I reside in it?
In principle, when a Mosque is built, the area below it (even below ground level) and the area above it (up until the heavens) are both considered to be part of the Mosque. As such, all the various rules concerning a Mosque would apply to these areas.
The renowned Hanafi jurist (faqih), Imam al-Haskafi (Allah have mercy on him) states:
“It is prohibitively disliked (makruh tahriman) to engage in sexual intercourse, urinate and relieve one’s self directly above the Mosque, for a Mosque is considered a Mosque up until the heavens.”
Imam Ibn Abidin (Allah have mercy on him) commentates on the above text by stating:
(al-Haskafi’s statement: “a Mosque is considered a Mosque up until the heavens” in the same way, it is a Mosque until below the earth.” (See: Radd al-Muhtar ala al-Durr al-Mukhtar, 1/656)
Based on this fact, the Hanafi Fuqaha state that once a Mosque is built, it will not be permitted to build anything else on top of the Mosque or below it. It will not be permitted, for example, to build shops, a library, a house, rooms for resting, toilets and other such things above or below the Mosque.
This is due to the fact that a Mosque is considered to be a Mosque from below the earth up until the heavens; hence, if such things were built, it would entail violating the etiquettes of a Mosque. People would be considered urinating, showering, trading and carrying out other such acts in the House of Allah. It will also not be permitted for a person in the state of major ritual impurity (janaba) or a woman on her periods to enter such areas. Hence, once a Masjid is built, it will not be allowed to exclude the areas above and below it from being part of the Mosque.
However, the jurists (fuqaha) state that the above ruling is in the situation where a Mosque has already been built and one decides to build other facilities above or below the Mosque later on. But, if the intention of excluding the area above and/or below the Mosque was made at the time of building and erecting the Mosque, then this will be permitted.
Imam al-Haskafi (Allah have mercy on him) states:
“If a basement was made under the Mosque for a purpose that is beneficial for the Mosque itself, then this is permitted, as is the case with the Masjid of al-Quds. However, if the basement or vault is made for the benefit of other than the Mosque or a house was made on top of the Mosque….. then the Mosque will not remain.”
He further states:
“If the Imam’s house was built above the Mosque, then this would be okay, for it is for the benefit of the Mosque. However, if the building of the Mosque was completed and then they intended to build a house, they will be prevented.”
Imam Ibn Abidin (Allah have mercy on him) explains quoting from al-Is’af:
“If the basement or that which is built above the Mosque is for the benefit (maslaha) of the Mosque or it is made Waqf for the Mosque, then (this will be allowed) and the Mosque will remain a Mosque.” (Radd al-Muhtar ala al-Durr, 4/357-358)
What the two renowned Hanafi jurists (and also other classical fuqaha) are implying is that, when building a Mosque, it is permitted to exclude the above and below areas of the Mosque from being part of the Mosque and to have something else built there. However, this is subject to the condition that the thing built is for the benefit of the Mosque or it is part of the Waqf. It will not be permitted to have something built that is in the personal ownership of an individual, because Allah Most High says: “And verily the Mosques are for Allah.” (Surah al-Jin, 18)
Therefore, it would be permitted, for example, to build below the Mosque the ablution area for the usage of those attending prayers, a library, shops that are given on rent with the revenue returning to the Mosque and other such facilities. Similarly, it will be permitted, for example, to build a house or rooms on top of the Mosque for the Imam, as that is in the interests of the Mosque (provided the house does not come into the personal ownership of the Imam). Similarly, it will be permitted to make rooms that are rented out with the rental income returning to the Mosque. However, what will not be allowed is to have someone build his own personal house above the Mosque or someone have his own personal shop below the Mosque, etc.
In conclusion, once a Mosque is built, it is not permitted to build anything above or below it, as the area below the Mosque and the area above the Mosque up until the heavens are considered to be part of the Mosque. Hence all the rules of a Mosque would apply, and it will not be permitted to exclude any part of the Mosque from being considered a Mosque once it is built. However, it is allowed to make an intention of excluding these areas when initially building the Mosque (or when purchasing it with waqf money), provided nothing is built that is in the personal ownership of an individual; rather, whatever is built must be for the benefit of the Mosque or the masses.
And Allah knows best
[Mufti] Muhammad ibn Adam
Leicester , UK