Article 1494 of the Maltese Civil Code (Chapter sixteen of the Legal guidelines of Malta), defines Emphyteusis as follows:
“Emphyteusis is a agreement whereby a single of the contracting parties grants to the other, in perpetuity or for a time, a tenement for a stated annually lease or floor-lease which the latter binds himself to pay to the former, possibly in income or in kind, as an acknowledgment of the tenure.”
Emphyteusis is usual of Continental law (European) and not English law. It is quite unique from lease or lease of a dwelling home or a piece of land. This is because compared with lease, Emphyteusis is a serious suitable which attaches to the land being contracted and not to the individual contracting such suitable. On the other hand, lease, being a own suitable, does not connect to the land or the dwelling home being granted, but only to the individual obtaining the lease. The legal implications arising out of these differences are significant, specifically with regards to the rights and obligations of the contracting parties.
The agreement of Emphyteusis should be made by public deed before a Notary Public. It would be null if done by usually means of a private creating. Lease, on the other hand may possibly be entered into by private creating and will have the power of law. The agreement of Emphyteusis can’t be modified all through the emphyteutical period. When the floor-lease is set up, it can’t be modified.
Article 1494 offers three key phrases which need to have to be clarified:
i. perpetuity or for a time
There are two styles of empytheutical grants: Perpetual Emphyteusis and short-term Emphyteusis. The former is a payment which should be effected on a yearly basis with the legal choice of redemption. Redemption renders the land freehold. Temporary Emphyteusis, on the other hand, is a agreement for a amount of a long time. (Ordinarily in Malta the most preferred amount of a long time contracted for are 17 a long time, 21 a long time, 99 a long time and one hundred fifty a long time.)
ii. stated annually lease or floor-lease
The ‘canone’ or floor-lease should be stated in the agreement, less than pain of nullity, and is to be compensated annually to the dominus, i.e. the proprietor of the home.
The utilista acknowledges the reality that he can legally delight in that assets and should admit the dominus as being the serious proprietor of such assets.
The agreement of Emphyteusis is a sui generis agreement whereby the dominus, who is the serious proprietor of the assets, is temporarily divested of all his ownership rights. This sort of rights and obligations are shifted to the ‘utilista,’ the individual enjoying such grant, all through such period. Upon the expiration of the agreement, the assets, with all the enhancements made to it, will revert to the dominus and there will be no suitable to extend the Emphyteusis.
In the outdated times, Emphyteusis employed to be granted by land entrepreneurs to farmers who tended the land. At times the settlement would be that as acknowledgment, relatively than shelling out income, the farmer would produce to the dominus component of the produce, harvest or fruit yielded by that land.
Possession rights and obligations are, all through the working of the Emphyteusis, vested in the utilista and not the serious proprietor. Article 1507 states that the utilista is bound to have out any obligationimposed by law on the entrepreneurs of structures or lands. This demonstrates the responsibility which the utilista has in phrases of servicing of the assets. He should treat such assets as if it were being his possess. If, nonetheless, there is significant expense in carrying out such obligation, the utilista may possibly implement before the Civil Court To start with Hall to need that the dominus be compelled to add a portion of the expense. In such a scenario the court docket will take into thing to consider, largely, the agreement of Emphyteusis entered into by the parties, the remaining period of the grant, the amount of money of floor-lease and other situations related to the need.
The utilista has a quite broad suitable of disposing of the assets held less than Emphyteusis he may possibly dispose of the emphyteutical tenement by usually means of a public deed which can possibly be an act inter vivos, i.e. made all through his life span, or causa mortis, i.e. made immediately after his dying, in this scenario, by usually means of a will. The utilista may possibly promote the Emphyteusis to a third occasion for a specified amount of money of income. Naturally, he will be providing the remainder of the emphyteutical period. Furthermore, he may possibly grant the assets as soon as once again less than Emphyteusis, recognized as sub-Emphyteusis, in which scenario, he will be obtaining a floor-lease himself.
This sort of alienation of assets does not demand the authorization or consent of the dominus, in possibly scenario. Furthermore, the rights and obligations of the utilista will, on transfer, be shifted onto the new utilista or sub-emphytheuta. The latter will only become the new utilista immediately after the dominus has acknowledged him. Until the new utilista is recognized to be incapable of carrying out his contractual obligations, the dominus can’t refuse to admit him. In scenarios the place the dominus refuses to admit the new utilista, the latter will even now stay individually bound to the former for the payment of the floor-lease.
For the duration of the period of the working of the Emphyteusis, the utilista has the suitable to ‘alter the area of the tenement, provided he does not trigger any deterioration thereof'(Article 1506(2)). Thus, if the utilista would like to construct even more or to include even more to the by now current constructions on the land, he may possibly do so. Furthermore, he is entitled to any ‘treasure trove’ that he may possibly locate on such assets. The dominus is not entitled to a share.
On expiration of the Emphyteusis, the utilista is bound by law to return the land or tenement with all the enhancements made all through the a long time all through which the assets was less than Emphyteusis.