The levelers

Many municipalities, with the intention of making the ancient emphyteutic privileges valid, and to ask the descendants of the levelers to pay the amounts related to the enfranchisement of rents, or to restore the payment of them (obviously with the current values), have set up a series of verifications regarding the existence of the existing leveler rights and concessions between the municipality and the citizens who in various capacities appear to be concessionaires of the use and enjoyment of forest or pasture land owned by the municipality. The aforementioned verifications tend to identify the holders of the real rights of enjoyment of the property in use, who only by paying the fee can maintain or change the ownership of the concession.

It seems useful to recall the meaning of some recurring expressions in contracts governing level concessions.

Livellari were medieval peasants who cultivated the land leased to them through a level contract whereby a land, forest, or pasture was granted to them to enjoy for a certain period of time under certain conditions. The term leveler comes from the Latin word “libellus” (booklet).

The Leveler is’ the person in whose favor the level grant is arranged. The form of contract most responsive to the characteristics mentioned above is emphyteusis: a right in rem over another person’s land, under which the grant holder enjoys useful dominion over the land itself, obligating himself to improve it and paying the owner an annual fee in money.

Emphyteusis is the broadest of the limited rights in rem, in that it grants its holder the same power to enjoy the land as the owner, except precisely for the obligation to improve it and pay rent. Emphyteusis may be established in perpetuity or for a fixed term, and in the latter case its duration may not be less than 20 years. It may arise by contract, for which written form and its transcription is required, by will with transcription of the deed of purchase, by usucaption, or by administrative measure.

In view of the above, it is obvious that the grantor, in our case the municipality, retains ownership of the land given under concession, and the concessionaire is left with the obligation to pay a periodic fee that constitutes a real charge.

As for the obligations and rights of the emphyteuta (i.e., the grantee of the land), it is noted that the same has:

1. The right of enjoyment over the fruits of the fund, subsoil uses and ignitions;
2. The right to reimbursement of improvements made, right of enfranchisement;
3. The obligation to pay the taxes levied on the fund;
4. The obligation to pay the grantor a periodic fee;
5. The obligation to improve the fund.

The institutions that come into consideration when the grantor and/or the grantee want to terminate the emphyteusis contract are devolution and enfranchisement, respectively. Both require a notarial deed with cadastral transcription of the change of the property owners.

It is necessary to clarify that the control that municipalities should preliminarily promote constitutes a formal non-probative assessment, by which the parties acknowledge an already ongoing relationship and the existence of this since its origin, whatever the case that caused its onset (purchase and sale of level land, testamentary succession, concession). It is also necessary to know and remember that:

1. The relationship may have been extinguished by law if established before Oct. 28, 1941, with a fee of less than 1,000 lira;
2. the relationship is extinguished by usury if the rent has not been paid for at least 20 years;
3. the outstanding relationship is frankable under Article 973 of the Civil Code by paying a sum equal to 15 times the rent, corresponding to the updated dominical income.

Although the intent of administrations should be, therefore, to provide clarity in order to obviate the fact that in the past they have often operated based on approximate and partial data, it seems appropriate to check on a case-by-case basis in order to ascertain transfers of the concession right that may not appear in the municipality.

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo