Emphyteusis

The emphyteusis (from the Greek ἐμφύτευσις, "establishment" or "implantation"), in Latin Emphyteusis, also called enfiteutic census, is a real right that supposes the temporary transfer of the useful domain of a property in exchange for the annual payment of a fee or revenue and, likewise, of a laudemio for each alienation of said domain, in its case. In some legal systems this assignment may be perpetual.

A kind of land concession, it is a lifetime lease, with respect to the useful domain of a farm. It was in force as a result of the latifundio (a large-scale farm, also characterized by an inefficient use of available resources).

Heir to medieval law, in Spain emphyteusis appeared under other feudal forms such as the manor or the forum, which disappeared at the end of the century XIX.

Direct domain vs. useful domain

The emphyteusis or emphyteutic census, is a shared regime of land tenure that entails the dissociation of the domain between the direct domain, corresponding to the owner, and the useful domain, that of the person who uses and benefits from the farm. The non-payment of the fee by the owner of the useful domain can lead to the confiscation of that domain by the owner of the direct domain, which returns to the situation of the property prior to the institution of the emphyteusis. The useful domain implies that the enfiteuta could decide on the economic destination of the land and modify it as much as he wanted as long as he paid the annual canon.

Rem Law

The emphyteut may assert his right against any person who disturbs his useful domain. This includes, as is logical, the possible disturbance from the owner of the thing, with which a large part of the doctrine considers that the faculties of the emphyteut are not born with the constitution of the emphyteusis, but are a mere transmission from the powers that come with dominance.

Emphiteusis in Spain

As explained by Francisco Tomás y Valiente, during the Middle Ages and mid-Modern Ages, the system of feudal regime and lordships made land possession the main source of wealth and, therefore, a of the main bases for the organization of society.

The ownership of the land was divided by virtue of various formulas for the exploitation of the land and that linked peasants and lords. The most frequent formula in the Peninsula was that of leasing, but in the territories of the Crown of Aragon the emphyteutic formula was frequent, which still persists in Catalan civil law. As a formula to facilitate the repopulation of the lands conquered from the Muslims, the emphyteusis was applied in the territories of New Catalonia (under the name of cens), in the Kingdom of Valencia and in that of Majorca, as emphyteusis. In Aragon it is called treudo.

In Valencia, emphyteusis presents its own characteristics. The roots of the emphyteusis in the Kingdom of Valencia is related to the creation of the Alfonsine jurisdictions. According to Antonio Gil Olcina, "the definitive conquest of the kingdom of Valencia meant the introduction of emphyteusis in it (...) where it was the majority or practically exclusive of the Mudejar population". This relationship with the Mudejar population implied that with the expulsion of the Moors decreed in 1609, many of the señoríos remained deserted or semi-empty. The instrument to repopulate them were the Puebla letters that included the delivery of land and houses to the enphyteutic census.

With the dismantling of the stately regime initiated in 1811 by the Cortes of Cádiz, with the Decree of August 6, the emphyteusis was seriously affected. While those gentlemen who had leased their lands saw their ownership over it strengthened, in exchange for the abolition of their seigneurial and jurisdictional privileges, the gentlemen who had shared property through the enphyteutic regime saw their eminent property status reduced to a mere real right that is owned by the emphyteut, that is, who pays the canon.

In a conventional Castilian manor there were combinations of rights favorable to the lord (such as: solar, jurisdictional and benefits derived from power) that allowed him to retain ownership of the land in most cases, substituting vassalage relationships for mere contracts between individuals and manorial property in a private property right. In the emphyteusis, on the other hand, it was considered that direct domain was a jurisdictional right that, when the Decree of August 6 was promulgated, was incorporated into the nation. This gave the emphyteuts the opportunity to acquire ownership of the land, by paying compensation to the direct owners. Not without an arduous legal fight by the direct owners in the courts. Despite obtaining the support of the Supreme Court doctrine, direct rule disappeared in favor of the emphyteuts. Thus, although the extinction of this figure did not properly take place in 1811, since the legislative measures of the Cortes of Cádiz had been abolished when Ferdinand VII returned to Spain in 1814, it can be said that the bases were laid for its decline. and final extinction around 1890.

The emphyteuts of the 21st century

The real right of emphyteutic or marquesado census, is still recognized by the Spanish Civil Code (articles 1,628 to 1,654). In the 2007 Yearbook of the General Directorate of Registries and Notaries, more than 27 million euros were paid for the censuses redeemed that year in the province of Barcelona. Although in 1837 the manor laws and feudal censuses were repealed, an exception was made for those belonging to jurisdictional lords. The most recent regulation that regulates enphyteutic censuses is Book 5 of the Civil Code of Catalonia of 2006. The censuses are not perpetual, that is, they can be "redeemed" or delete. To do this, you have to pay an amount. Of course, you only pay once and the census is extinguished.

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