A recent topic of discussion is that of ‘Emphyteusis’ a regime which has its roots in the feudal system and is connected with the agricultural economy…
… Farmers were offered the possibility to cultivate the land and sustain themselves.
The ownerships were divided into three categories:
– Dominium Directum – the right of the landlord.
– Dominium Utile – use without ownership.
– Dominio Utile – the right of the tenant.
The closest legal term to emphyteusis would be ‘leasehold’. Where the landlord retains the ownership and the lessee has the right to use it. They must also improve the estate and pay a yearly rent. Emphyteusis can affect both land and urban buildings, even villas and apartments. It is not compulsory that the land is uncultivated or the property in disrepair, improvements can still be made to real estates in bad condition, independent of this.
The contract between the ‘landlord’ and the ‘tenant’ is a written agreement, payments are recurring and the duty to pay such rent stops only if the estate is destroyed.
An Emphyteuta (tenant) has the right to dispose of his right with a last Will and testament and also without one.
The right of the landlord can be acquired by means of ‘limitation of actions’ i.e. the period of time in which a person has to file with the clerk of the court or appropriate agency what they believes is a valid lawsuit or claim. The change of legal title must occur through a notarial deed (possibly wrongly) or continual possession throughout time (a third party who takes possession of the estate, behaving as though landlord).
Duration and obligations
Emphyteusis can be perpetual or limited to a minimum of 20 years, the emphyteuta (tenant) is entitled to the same rights belonging to the landlord. He can rent the property, receive compensation for the improvements made and even retain the property until full payment of his credit is rightfully received. These things as well as those mentioned above do not need the consent of the landlord. If the emphyteusis has a duration of 20 years the tenant does not have the right to transfer the right with a contract. The right of pre-emption does not apply to the emphyteuta in the same way it does to farmers i.e. the right to purchase land in preference to others.
So in conclusion an Emphyteuta must increase the productivity, the usefulness or the value of the estate, rural or urban. This obligation lasts the whole of the duration of the term of emphyteusis and can be regulated with a written agreement. Payment of rent on a yearly basis.
The landlord has the right to request the end of the Emphyteusis due to a breach of the legal obligation of the tenant. To refund the improvements made on the property, to not interfere with the full enjoyment of the property to which the emphyteuta is entitled.