Mecca’s land had been set aside for the Muslims and subjected to kharāj, that would not have prohibited the sale of its residential properties. How, then, could this apply to Mecca when the Prophet, may Allah bless him and grant him peace, left its houses and farmland in the hands of their owners as before, neither distributing the land nor imposing kharāj on it?

This is why some held that it had been conquered by treaty. Yet there is no doubt that it was conquered by force, as the authentic, mass-transmitted hadiths establish. However, the Prophet, may Allah bless him and grant him peace, set all its inhabitants free: he killed only those who fought him, took none of their offspring captive, and seized none of their property as spoils. Hence they were called “those set free.” Ahmad and others among the early generations based their explanation on its having been conquered by force together with its being shared by the Muslims, as Allah Most High says:

“And the Sacred Mosque, which We have made for all people, residents and visitors alike.”

This is the distinguishing consideration that applies to Mecca alone, unlike other cities. Allah has made pilgrimage to it obligatory upon all people and prescribed performing umrah there at all times, thus making it shared by all His servants. As He says:

“Residents and visitors alike.”

For this reason, at Minā and the other pilgrimage sites, whoever first occupies a place has the greater right to it until he leaves, just as in mosques. In Mecca itself, too, whoever first occupies a place has the greater right to it. A person has the greater right to his dwelling for as long as he needs it, but whatever use of it is surplus to his needs he must make available free of charge to others, whether pilgrims or not.

Accordingly, there are three opinions concerning renting out its houses and selling its residential properties. One holds that neither is permissible; another holds that both are permissible.