Agricultural preemption in case of sale of co-ownership share of land

Often practice brings to our attention cases of sale of agricultural land by private individual to agricultural entrepreneur, already a 50 percent co-owner of the fund. In such a case, the question arises whether there is a right of first refusal in favor of other neighboring direct growers and/or agricultural entrepreneurs.

Article 7 of the Law of August 14, 1971, no. 817, gives the right of first refusal for the purchase of agricultural land “to the direct cultivator who owns land bordering on land offered for sale, provided that no sharecroppers, tenant farmers, tenant farmers, sharers or emphyteusis direct cultivators are settled on theland.”

Now, in order to assess whether the preemption of the confinate operates in the case where the object of sale is a share of the property, reference can be made to case law that has consistently held that preemption and agrarian redemption subsist even in the case where the object of alienation is an ideal share of a fund belonging to several persons in undivided ownership (ref. Cass. March 30, 1988, no. 2686 : “Art. 7 of Act Aug. 14, 1971 no. 817, which grants the right of first refusal (and redemption) to the direct farmer who owns land adjoining the land being offered for sale, is also applicable in the case of alienation of an undivided share of said land …… taking into account that the purpose pursued, that is, the creation of more efficient agricultural holdings, remains ensured even by mergers limited to the acquisition of co-ownership on said land“. In the same vein: Cass. January 30, 2006, no. 1870; Cass. July 26, 2001, no. 10218)

Further elaboration, moreover, deserves the different profile of the absence, on the fund offered for sale, of another direct cultivator: the Supreme Court has held that the existence on the fund offered for sale of a direct cultivator does not so much give the latter preference over neighboring owners, but, rather, excludes precisely the right of preemption in favor of the neighbors, even in the event that the cultivators of the fund do not intend to exercise their right of preemption. However, the Supreme Court June 18, 2003, no. 9712 clarified that “in the case of the sale of an agricultural property, the right of first refusal and redemption accruing to the direct cultivator owner of land bordering on that offered for sale is not excluded by the mere existence of a sharecropping, colony, lease and subdivision contract having as its object that property , being necessary the existence of a stable and effective settlement on the land, since it is the latter that justifies the overriding protection of the preservation of the tenant’s farm over the interest of the owner of the neighboring land in the conglobation of the land.”

With reference to the case at hand, it must, therefore, be stated that since the transfer of co-ownership share of the land is subject to agricultural preemption, there is a right of preemption in favor of other neighboring direct cultivators only if the non-selling co-owner, an agricultural entrepreneur, cannot also be considered a direct cultivator.

The status of direct cultivator, which is relevant for the purpose of agricultural preemption, is contained and defined in Article 31 of Act No. 26 of May 1965. 560, which states, “direct cultivators are those who directly and habitually engage in the cultivation of land and the raising and tending of livestock.”

This qualification differs from that of agricultural entrepreneur under Art. 2083 c.c. of small agricultural entrepreneur, since from the concept provided by the aforementioned Article 31 “is extraneous to any reference to the quality of agricultural entrepreneur (ref. Cass. February 8, 1991, No. 1334, which denied the right of pre-emption in favor of the owner of livestock business who rents the fund for the sole purpose of using it for grazing).

It will, therefore, be necessary to ascertain whether the non-selling co-owner, an agricultural entrepreneur, also possesses the status of a direct farmer under Art. 31, l. 560/1965. And in doing so, it will be necessary to keep in mind that the status of direct cultivator derives from the direct and habitual cultivation of the land and the keeping of livestock and, furthermore, that it is not necessary that this activity be prevalent over other activities that may be carried out by the cultivator, nor, again, that the periodic or seasonal nature of agricultural work is not relevant (ref. Cass. Jan. 18, 1983, No. 475; Cass. March 7, 1981, No. 1289; Cass. June 11, 1979, No. 3294; Cass. April 23, 1980, No. 2664).

Finally, as for any evidence, the Supreme Court has made it clear that there is no need for documentary evidence, from which the status of a direct grower must be apparent (ref. Cass. September 1, 1982, no. 4769: “quality can be proven by any means of evidence and on the basis of factual circumstances resulting from the evidence“).

In conclusion, it can be said that in order to exclude preemption in favor of neighboring owners, it is sufficient for the non-selling co-owner to have the status of a direct cultivator and, in any case, the requirements indicated in Article 31 of Law No. 26 of May 1965. 560.

If, on the other hand, the farmer who is a non-selling co-owner is not a direct cultivator, preemption will exist in favor of neighboring landowners, provided that they have the status of direct cultivators.

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo