Biennial bottom cultivation

Let us return to a detailed analysis of one of the conditions that allow the cultivator, settled on the land, to exercise preemption, and that is the circumstance that the direct cultivator cultivates the land for a certain period of time. The above period, following the amendment introduced by Art. 7 of Law no. 817 of 1971, was changed, in fact from the four-year period previously stipulated in the industry regulations to a two-year period. Art. 8 first paragraph of Law no. 590 of 1965 states, precisely: “in the case of transfer for consideration of land leased to direct cultivators…the tenant…has the right of first refusal provided that he has cultivated the same land for at least two years….”

The direct cultivator settled on the land can, therefore, exercise preemption if he or she has been cultivating the land for at least two years. The rationale of the rule is to ensure the professionalism of the farmer, a professionalism determined and acquired on the basis of a minimum stay on the land, which, according to the legislature, is suitable to justify the right of preference granted to the tenant.

According to the doctrine, the two-year period should be calculated from the beginning of the contractual relationship and not per crop year, and, in addition, periods of working under other than the contractual title invoked for the exercise of agrarian preemption can also be counted in the two-year period. Thus, for example, the period of cultivation of a jointly-owned fund can be cumulated with that carried out under lease after the division of the same fund (ref. Cass. Feb. 26, 2003 No. 2879).

Also in this vein, it has been clarified that it is not necessary that the title granting the right to cultivate the land be a single one for the entire two-year period: according to the Supreme Court, it is possible to sum up cultivation periods based on different titles, as long as they all legitimize preemption (ref. Cassation Oct. 31, 2008 No. 26286; Cassation Feb. 12, 2002 No. 1971).

In any case, two-year cultivation will be eligible to trigger the right of first refusal if implemented under a valid title, i.e., suitable to justify the conduct of the land itself (ref. Cass. July 8, 2005 No. 14450).

Moreover, other rulings of the Supreme Court testify to the existence of the various interpretations and clarifications that have occurred from time to time in this area of agricultural law:

• the biennium should be calculated on a calendar year basis, not a crop year basis, and it must be a fully elapsed period;
• the two-year period should be calculated with reference to the time of the conclusion of the preliminary contract of sale of the land from the owner to the third party (ref. Cass. Aug. 9, 1991 No. 8658).
• cultivation must be based on an actual legal title, and therefore a commodity contract or a de facto settlement on the agricultural land would not suffice.

As for the last case, it has been clarified that cultivation of the land as a tenant must be based on an actual legal title, so a de facto settlement on the agricultural land, lacking a supporting title, is not sufficient, nor is a commodate contract (ref. Cass. Oct. 31, 2008, No. 26286; Cass. April 2, 1980, No. 2135).

According to the Supreme Court, the direct grower can prove tenant status in any way, so in the absence of a registered lease, tenant status can also be proven by witnesses and presumptions (ref. Supreme Court Dec. 7, 2000, No. 15526).

It seems appropriate to note, lastly, how it should not be forgotten that the right of first refusal does not accrue when there is an expired lease (ref. Cass. Oct. 17, 1997, No. 10174). Doubtful, however, is whether the aforementioned right of first refusal can be granted to the direct farmer subtenant.

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo