Plurality of neighbors

Neighbor preemption, when there is more than one contiguous land, entitles all neighbors to exercise the right of preemption. If only one exercises it, no problem arises. If they intend to exercise the right of first refusal in more than one, the problem arises of establishing the criterion for giving preference to one or the other.
The Supreme Court had identified the following criterion before the legislature intervened with Article 7 of Legislative Decree May 18, 2001, no. 228: The expansion of the territorial size of the direct-farming enterprise, which better realizes the needs of land consolidation, business development and the establishment of technically and economically efficient production units, should be encouraged. In view of the above, it is pointed out that:
(a) The judge must specifically evaluate the whole case;
(b) The temporal priority of one or the other neighbor’s initiative has no relevance;
(c) The preference expressed by the selling owner of the land has no bearing;
(d) It is necessary to take into account: 1) Of the size of the land; 2) Of the topographic physical and cultural characteristics of the land; 3) Of the exuberance of the neighboring labor force; 4) Of the stability over time of the company to be established.
The ruling of the Supreme Court. Sect. United, Oct. 18, 1986, no. 6123 represents the culmination of a long discussion intended to clarify what the criteria were for determining how to resolve the problem of neighbor preference. Various opinions faced each other in this regard.
Some claimed that in the case of multiple neighbors, preemption did not operate. Others believed that the temporal priority of the exercise of the right prevailed. Others, again, believed that the choice made by the selling owner should prevail. Others recalled the standard contained in the article. 8, 9th paragraph of Law 590/1965 which they applied by analogy supporting the joint application of the right of first refusal in favor of all neighbors.
The aforementioned jurisprudence of the Supreme Court in United Sections has been adopted by subsequent jurisprudence to such an extent as to legitimize the feeling that it was a well-established direction. Recently, however, Article 7 of Legislative Decree no. 228 of 2001 provided that: “For the purpose of exercising the right of first refusal or redemption as referred to in Article 8 of Law No. 26 of May 1965, respectively. 590, as amended, and Article 7 of Law No. August 14, 1971. 817, in the case of several neighboring entities, the presence as participants in their respective enterprises of direct growers and principal farmers between the ages of 18 and 40 years or in associated land management cooperatives, the number of them, as well as their possession of adequate knowledge and skills within the meaning of Article 8 of the 1257/99 of the Council of 17
May 1999.”
In this way, the standard established a preferential criterion:
(a) in the first degree, direct cultivators or agricultural entrepreneurs between the ages of 18 and 40, or, it seems in the same degree, although the doctrine states otherwise, the status of a member of an associated land management cooperative;
(b) in a subsequent degree, the number of the aforementioned growers and entrepreneurs, provided that they possess adequate knowledge and skills in accordance with Art. 8 of EC Regulation No. 1257/99 of the Council, issued on May 17, 1999.
It should also be noted that the scale of preferences is devised in such a way as to make it operative not only if the most favored condition is missing altogether, but also if it is subsisting, when, moreover, it is unable to operate a solution: consider the hypothesis of several estates, in each of which there is a farmer between the ages of 18 and 40; it is clear that the age requirement in such a case will not be able to play a decisive role in the choice and therefore it will be necessary to resort to the second requirement: number of farmers and possibly also to the third requirement, when the second requirement is not decisive either.
Finally, it should be clarified that while the number of cultivators takes into account each additional unit in determining the favored cultivator, the same is not true of the age requirement, since the legislature shows that it considers not the actual age of the individual, but to the same degree the wide age range between 18 and 40 years old as the data to be taken into consideration: therefore, the 18-year-old cultivator has identical eligibility, as far as age is concerned, as the 40-year-old cultivator, and the same applies to any age between the two thresholds.

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo