that which cannot be divided from the land, as evidenced by his saying: "if the boundaries have been set and the paths defined." Furthermore, this is something that does not endure permanently, so preemption is not mandatory in it, like a heap of grain. The hadith of Ibn Abi Mulaykah is mursal (a chain missing the Companion) and has not appeared in the reliable books. The ruling on the scoop (ghiraf), the water-wheel (dulab), and the noria (na'urah) is the same as the ruling on a building. As for if the tree is sold with its foundation in the ground, separate from what permeates it of the land, its ruling is the ruling of that which cannot be divided of real estate, and because this is something that cannot be divided, according to what we will mention. It is possible that preemption would not be mandatory in it at all, because the foundation is a dependency to it; thus, if preemption is not mandatory for it individually, it is not mandatory for its dependency. If a share of the upper floor of a shared house is sold, you should consider: if the ceiling underneath it belongs to the owner of the lower floor, there is no preemption in the upper floor, because it is an individual building. If it belongs to the owner of the upper floor, it is the same, because it is an isolated building, as it has no land [attached] to it, so it is as if the ceiling were not his. It is also possible that preemption is established, because it has a foundation, so it is like the lower floor.

Chapter: The third condition is that the sold item must be something that is capable of being divided. As for that which cannot be divided of real estate, such as a small bathhouse, a small mill, a doorjamb, a narrow path, and narrow courtyards, there are two narrations from Ahmad regarding it. The first is that there is no preemption in it; Yahya ibn Sa'id, Rabi'ah, and al-Shafi'i stated this. The second is that there is preemption in it; this is the opinion of Abu Hanifah, al-Thawri, and Ibn Surayj. From Malik, there are two narrations like these. The basis for this is the generality of his (peace and blessings of Allah be upon him) statement: "Preemption is in whatever has not been divided," and the rest of the general expressions. Also, because preemption was established to remove the harm of partnership, and the harm in this type is greater, as its harm is perpetual. The first is the manifest position of the madhhab.