Rights of easement in Islamic law

Rights in rem give the right holder the authority to use the res, benefit from the res and dispose of the res. The Rights in rem that includes all of these powers is the right of property. Rights that provide some of these powers are expressed as limited rights in rem. One type of limited rights in rem is easement rights. Easement rights give the right holder the authority to benefit from the res. Since easement rights are evaluated within the scope of benefit ownership, they are included in the concept of "milk". Easement rights are expressed in fiqh books with the concepts of "irfak", "hukuk" and "merâfık". Easement rights are divided into two as servitudes attaching to property and servitudes attaching to a person. The most common types of servitudes attaching to property appear as shirb right, mecra and mesil right, right of passage and right of construction. However, servitudes attaching to property are not limited to these rights. It is possible to establish different types of servitudes attaching to property. Personal servitudes are the rights of usufruct and rigth of residence and irregular personal servitudes. In Islamic law, there was no need to establish the right of usufruct and rigth of residence independently, due to other legal transactions that ensure the transfer of the benefit ownership, especially the lease contract. However, it has been observed that irregular personal servitudes have been established. Although there is no right of easement, there are some rights that are considered as easement by some authors. At the beginning of these rights are the construction servitude, the vicinity rights and the shafa right. Construction servitude is not an easement in the real sense. This right can be evaluated within the concept of "hakku't-tamalluk". The vicinity rights cannot be considered as a right of easement, although it is a reason for restricting ownership. The vicinity right has differences from easement rights. There are writers who understand the shafa right as the shirb right. However, there are many differences between the two concepts. It provides the shafa with the authority of ibaha. Therefore, it is not an easement to the shafa.