The emphyteusis is a real right of enjoyment provided for by the civil code. In essence, the owner of a real estate can grant the emphyteute extensive powers over the property as long as the conditions are improved. Let’s see how it works.
In jurisprudence, in addition to property, there are other real rights, such as usufruct , servitude , right of use and housing. Among these there is also the so-called emphyteusis , or the power granted to a specific subject to enjoy a fund of the relative fruits, paying a fee to the owner.
To do this, there are specific obligations to be respected, such as that of improving the property itself. Let’s see, therefore, to clarify the concept in the following lines, analyzing the various characteristics and the reference standards.
- What is the emphyteusis?
- How does the emphyteusis work?
- The postage and the return
What is the emphyteusis?
The emphyteusis grants the holder of the right wide powers , very similar to those of an owner of an asset. Indeed, the subject may behave as if the fund in question were his property . However, it is a right that can be extinguished by prescription , while the property is imprescriptible.
The art. 959 of the civil code states that:
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The leaseholder has the same rights that the owner would have on the fruits of the estate, on the treasury and in relation to the use of the subsoil in accordance with the provisions of the special laws.
The leasehold’s right extends to accessions
Basically, whoever grants the asset, confers to another subject, defined as lease, the enjoyment and use of the same as long as the following obligations are respected:
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- payment of a periodic fee, which can be a sum of money or a fixed amount of natural products
- fund improvement
It should also be noted that the holder of the right cannot refuse to pay the fee provided in the event that the fund becomes sterile or in the event that the fruits are lost or destroyed.
The obligation to improve the property in question, on the other hand, represents the true objective, that is the very essence of this legal instrument. By introducing this rule in 1942, the legislator aimed to curb the abandonment of agricultural land , encouraging their exploitation and productivity.
But what exactly does it mean to improve a fund?
The leaseer must carry out works or implement behaviors with the aim of:
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- increase the value of the land
- increase productivity
This characteristic distinguishes the case in question from other relationships such as the lease contract.
How does the emphyteusis work?
This particular real right of enjoyment has some peculiar characteristics. The art. 958 cc . describes what the duration must be, that is:
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The emphyteusis can be perpetual or timed.
Temporary emphyteusis cannot be established for a duration of less than twenty years
Basically there can be a long lease:
- perpetual,e. indefinitely
- or for a fixed term. In this case it cannot last less than 20 years, since the right holder must have the time necessary to complete the improvements.
It is possible to become emphyteutes in different ways, namely:
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- through a contract, which must necessarily be in writing and transcribed in the real estate registers
- through a will
- through usucapionewhen you have continued possession of the property for at least 20 years. For example, those who for a long time paid the rent to the owner and brought improvements to the fund, even without written agreements
The right, on the other hand, expires when the following situations occur:
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- the pre-established time runs, at least 20 years, as we have specified above
- prescription, if the holder does not exploit the right for 20 years
- explicit waiver
- confusion, i.e. when the owner becomes the owner of the asset
- postage or return, as we will see shortly
- collapse of the fund
If a partial loss occurs, the owner can opt for the following actions:
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- waiver of the right of lease, obtaining reimbursement of the improvements made up to that moment
- reduction of the rent
In any case, at the end of the agreed period, the subject must always obtain reimbursement for the improvements made , or rather must receive the sum equal to the increase in value of the fund, obtained thanks to his interventions.
In the event that a civil lawsuit is initiated to effectively ascertain the increase in the value of the same, the emphyteute can withhold the fund until he receives the amount due to him.
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The postage and the return
The holder of long leases by law has the right to freeing , that is, he can become the owner of the land by paying a figure equal to 15 times the value of the annual rent.
The art. 9 of law 1138/1970 in fact underlines that:
The release of the fund is carried out in any case, even in the case of urban or building long leases, through the payment of a sum equal to 15 times the amount of the rent.
In this case, the consent of the grantor is not required, since it cannot oppose a potestative right. Then the subject can apply to the court to assert his right to ownership of the land.
On the other hand, the owner can assert another potestative right , namely devolution . In essence, he can ask the court to release the fund, in order to be able to fully enjoy it again.
It is possible to do so if the leaseer:
- fails to comply with the obligation to improve the fund
- deteriorates the good
- does not pay the fee regularly, or rather is two years late
With regard to this last aspect it should be noted that, if the payment is made before a sentence, even at first instance, it is no longer possible to exercise the devolution.
Furthermore, the counterparty can always pay a sum equal to 15 times the annual fee to obtain the redemption.