Coheir’s preemption

Art. 8 last paragraph of Law no. 590 of 1965 provides that to the persons referred to in the first: the tenant, sharecropper, settler or co-sharer “shall be preferred, if direct cultivators, the co-heirs of the seller.” There is uncertainty about the interpretation of this rule, and it seems that the uncertainty stems from the fact that before solving the problem, the additional issue of whether or not the rule applies when Art. 732 c.c. in good substance, it needs to be clarified whether the preference to the coheir is given only in the hypothesis that the community of inheritance is still in existence and the division of inheritance has not occurred, or also in the hypothesis that the coheirs have now become mere commoners.
Cassation jurisprudence holds that if the community of inheritance has ceased to exist, the rule should no longer be applied and therefore there is no longer any reason to grant the preference provided therein (see Cass. April 21, 1997, Sent. no. 3424: for which the right of preemption in favor of the co-heir, governed by Art. 732 of the Civil Code. and which prevails over the right of preemption of the direct cultivator of the fund when the coheir is also a direct cultivator, presupposes a situation in which the majority of the various components of the hereditary estate are still in the state of indivision as resulting at the time of the opening of the succession, so that where divisional operations have been carried out that have led to the elimination of the aforementioned state the residual communion on the hereditary property is transformed into ordinary communion, without the possibility of application of the aforementioned art. 732 Civil Code; similarly, Cass. July 26, 2001, Sent. no. 10218; Cass. Feb. 15, 1993, Sent. no. 1850.
In contrast, doctrine is divided. Some argue that even after the division of the estate the rule finds application; others, however, fully espouse the view of the Supreme Court, on the assumption that the rule assumes in full the operation of Art. 732 on coheir preemption, a rule that provides for the existence of community of inheritance.
However, in the end, the doctrine concludes that the only case in which a conflict between cultivator and co-heir can occur is where the inherited estate is identified with a single rustic estate, characterized by the possibility that a co-heir intends to alienate his share of the estate corresponding to his share of the inheritance.
When, as a result of the violation of the aforementioned regulations, there is a violation of the right of preemption, the remedy available to those affected is retraction or redemption, a legal institution that integrates the typical remedy provided for the case of violation of the preemption regulations and has been qualified as a complementary potestative right to the right of preemption. It is the instrument for the protection of preemption, the means that serves to ensure and achieve the same objectives pursued by the law with preemption (compare Cass. Sept. 11, 1972, Sent. n. 2724;
Cass. Nov. 22, 1974, Sent. n. 3792; Cass. Oct. 16, 1976, Sent. n. 3498).
The farmer’s right to take over from the third-party purchaser of agricultural land in case of non-compliance with the rules on preemption:
(a) It is a potestative right of the retractor;
(b) It is expressed in a unilateral recetive statement;
(c) It must be filed within the legal time limit of one year, which starts from the date of the transcription of the deed of sale;
(d) It should be expressed either by extrajudicial act or by judicial summons.

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo