Contiguity of funds

The concept of “adjoining fund” has been held to correspond either to that of adjoining in the legal sense, or to that of physical and material contiguity, by mutual contact along the common demarcation line, whether this demarcation line is merely ideal or materialized with walls, hedges, fences or other signs; and in any case with the exclusion of the concept of contiguity when the so-called functional contiguity occurs, that is, when the funds are separate but suitable to be united into a single agricultural holding.

Having thus clarified the concept of adjoining funds, case law provides for a long casuistry of factual situations that exclude contiguity, making the neighbor’s preemption unworkable.

The situations that have come to the attention of the court case history can be summarized as follows:

• Interpodal road: bordering should also be considered the property not materially united to the one offered for sale if the material separation is due only to an interpodal road that insists on the land of the two properties and does not, therefore, impede the possibility of extension of cultivation and amalgamation of farms;
• public road: land is not adjoining if it is separated by a municipal road;
• private road: land located on the sides of an agricultural private road, which does not insist on either the land owned by the retractor or the land owned by the retractor, should be considered non-contiguous;
• ditches: preemption operates even though the neighbor’s cultivation activity does not extend as far as the boundary line due to the existence of a ditch within which the boundary line between the two agricultural funds flows;
• lane: the land constituting the site of a vicinal road not open to public transit, or of a private agricultural road, may result from the union of portions detached from adjoining funds; in such a case these portions do not remain in the individual property of each of the grantors, so as to be subject to easement of passage in favor of the others, but give rise to the formation of a new property, the subject of communion and enjoyed by all under a common right of ownership; it follows that the funds placed on its sides cannot be considered contiguous to each other, but must be considered as non-contiguous funds for the purposes of the institution of agrarian pre-emption;
• public water: there is no contiguous fund in the case of funds separated by a natural course of water having a public character, regardless of the fact that said course is sometimes dry and that the same is not included in the list of state waters, given the declaratory and not constitutive character of said lists;
• private water: two estates are to be regarded as adjoining even if they are separated by a channel for draining their water, where, in the absence of proof to the contrary, this channel is to be presumed to be common, within the meaning of Art. 897 Civil Code, resulting in the material contiguity of the funds, extending to half of the channel between them;
• seller’s strip of land: artificial diaphragms cannot be created in order to eliminate the requirement of physical adjoining land in order to preclude the exercise of preemption (thus reserving a portion of land for the purpose of precluding preemption);
• adhering construction: it does not integrate the situation that confers the right of first refusal to be the owner of a property, bordering the property being bought and sold, the area of which is occupied for the most part by a civilian dwelling house, a warehouse, a yard and a private access road, so that an area so small that it cannot be given that status of cultivated land remains for agricultural use;
• rural building: where this is organized to serve the adjoining agricultural land, with which it forms a unitary complex, preemption operates;
• land used for camping: there is no right of first refusal if the surrounding land is used for camping, or for industrial or tourist settlement.

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo