All praise is due to Allah alone, and peace and blessings be upon the one after whom there is no prophet, Muhammad, and upon his family and companions. To proceed:
Based on what was decided in the seventh session of the Council of Senior Scholars, held in the city of Taif in the first half of the month of Sha'ban in the year 1395 AH, regarding the inclusion of the issue of pre-emption in private facilities in the agenda of the eighth session, the aforementioned issue was studied in the eighth session of the Council held in the first half of the month of Rabi' al-Thani in the city of Riyadh. The issue of pre-emption in cases where the real estate cannot be divided was also studied. After reviewing the research prepared on (the issue of pre-emption in cases where the real estate cannot be divided) by the Permanent Committee for Scientific Research and Ifta.
After deliberation and discussion among the members, and exchanging viewpoints, the Council decided by majority:
That pre-emption is established by partnership in private facilities such as wells, roads, and waterways, and it is also established in cases where the real estate cannot be divided, such as houses and small shops, due to the general evidence in this regard; and because it falls under the principle of exercising pre-emption, which is to prevent harm to the partner in the sale, and in the right of the sold property. The legal texts regarding the permissibility of pre-emption encompass this, including what was narrated by Al-Tirmidhi with his chain of narration to Ibn Abbas, may Allah be pleased with them, that the Prophet, peace be upon him, said: (The partner has the right of pre-emption, and pre-emption applies to everything). In a narration by Al-Tahawi with his chain of narration to Jabir bin Abdullah, may Allah be pleased with them, that the Prophet, peace be upon him, ruled pre-emption in everything. Al-Hafiz said: The hadith of Jabir has reliable narrators. And as narrated by Imam Ahmad and the four scholars with their chain of narration to Jabir bin Abdullah, may Allah be pleased with them, he said: The Messenger of Allah, peace be upon him, said: (The neighbor has the right of pre-emption over his neighbor, even if he is absent, if their path is one). In Al-Bulugh, it is stated: And its narrators are trustworthy. And as narrated by Al-Bukhari in his Sahih, and Abu Dawood and Al-Tirmidhi in their Sunans with their chain of narration to Jabir bin Abdullah, may Allah be pleased with them, he said: (The Messenger of Allah, peace be upon him, ruled pre-emption in everything that has not been divided, and when the boundaries are established and the paths are diverted, there is no pre-emption).
The reasoning for this is what Ibn Al-Qayyim, may Allah have mercy on him, mentioned in his book "I'lam Al-Muwaqqi'in": That the neighbor who shares with another in a private facility, such as having a common path, or sharing in drinking or waterways, or similar private facilities, is not considered a complete partitioner, but rather a partner with his neighbor in some of the rights of his ownership. If their path is one, not all boundaries are established, but some are present, and some are absent, as the establishment of boundaries from every aspect necessitates or implies the diversion of paths. End of quote.
And with Allah is success, and peace and blessings be upon Muhammad, and upon his family and companions.