Rights of Elevation and Its Application in Today's Apartment from Jurisprudence and Legal Perspective

Abstract

One of the most important social and economic challenges of the present time is the issue of housing, which has arisen as a result of the too much increase in the population. Therefore, to be able to reduce this challenge, people have turned to apartment living to solve it. What emerged as a result of this was the emergence of a new legal association between apartment unit owners. A relationship that was discussed less in ancient jurisprudence and only in a small instance under the title of "higher and lower", and that too as an easement. The purpose of this research was to examine and clarify this important question: is it possible to justify the legal relationship between apartment unit owners based on the theory of superiority and inferiority and consider it an easement? Or will this relationship go beyond that, and assuming it goes beyond that, on what basis can it be justified? This research is library-based, and attempts have been made to address the issue using an analytical method through jurisprudential texts, especially Hanafi jurisprudence and contemporary legal doctrine. What was obtained from this study indicates that Hanafi jurists have considered the right of elevation to be an easement belonging to the object, which, if destroyed, cannot be bought and sold independently. But some other jurists have considered this relationship to be a property right. Given that this disagreement was based solely on ijtihad and not on text, in contemporary jurisprudence, the issue of inferiority and superiority is recognized as a property right. Or, in contemporary law, especially the Civil Constitution of Afghanistan and some other legislative documents of this country, this issue has also been given due attention.