Overview of agricultural preemption in general: legislative path and conditions

Agricultural preemption finds its origin in Art. 8 of the law of May 26, 1965, no. 590, which provides as follows: “in the case of transfer for consideration or grant of emphyteusis of land leased to direct cultivators, sharecroppers, part-coloners, or sharers, excluding seasonal farming, the tenant, sharecropper, settler, or sharer, all other things being equal, shall have the right of pre-emption provided that he has cultivated the same land for at least two years, has not sold in the previous two years, other rustic land of an area greater than one hectare, except in the case of a transfer for the purpose of land consolidation, and the land for which he intends to exercise preemption in addition to any others he may own under ownership or emphyteusis does not exceed three times the area corresponding to the working capacity of his family.”
Thus, in its origin, the sole purpose of agrarian preemption was to link the ownership of the agricultural land with the subject who by his work determined the exploitation of the land, without, however, depriving the owner of his right, but only conditioning its exercise for the benefit of a certain category of subjects, who, by exploiting the profitability of the land, benefited from a kind of privileged relationship between property and the working subject.
Indeed, it is stated that the purpose of preemption is to encourage, in the general interest of agricultural development, the reunion in the same person of the quality of land owner and land worker
In 1971, with the Act of August 14, 1971, no. 817, preemption is also implemented in favor of the owner of adjoining land, provided that he himself is a direct cultivator of his adjoining land. In this case, the function of preemption appears to be different from the previous one, in that the neighbor’s preemption is aimed at the amalgamation of agricultural land in order to improve the profitability of the land, that is, to form larger, more technically and economically efficient direct-cultivation enterprises.
In this way, we speak of common agricultural preemption to indicate the preemption affecting the land offered for sale in favor of direct cultivator settled on the land itself; instead of neighbor’s preemption to indicate the preemption provided for the benefit of direct cultivator owner of land contiguous to the agricultural land offered for sale.

CONDITIONS

Agricultural Fund
The law speaks of fund, without any other specification. It must be agricultural land, that is, land used for farming, which excludes the property qualifying as a building, except as will be seen below for the farmhouse or rural building.
In the silence of the law, case law has had occasion to examine numerous cases
practices, reaching the following conclusions:
– The size of the land has no relevance;
– The type of cultivation does not matter;
– It does not matter that the farmland is not currently cultivated, because only its susceptibility to also being cultivated in the future matters;
– Forests are also susceptible to agricultural preemption;
– The existence of a blockhouse on the land does not preclude preemption if it is instrumental to the cultivation of the land.
– The possible agrotourism use of the land does not void the right of first refusal, because the agricultural use of the land is not changed;
– Landscaping or public green use assigned to the land is not deemed to be an obstacle to agricultural preemption.

Direct farmer qualification
A particularly important element to take into consideration is that of the preferred party’s status as a direct grower in the matter of land preemption.
Previously there was only Art. 8 of the law of May 26, 1965, no. 590, which in the first paragraph mentioned the tenant farmer, sharecropper, sharecropper, and co-participant; in the third paragraph mentioned, in the case of communion, the member of the farming family for the transfer of share of the agricultural land provided that he is a manual cultivator and the continuer of the exercise of the family business in common.
Subsequently, Art. 16 of Act Aug. 14, 1971, no. 817 extended the legitimacy of the exercise of preemption to agricultural cooperatives of land cultivators, it being understood that in that case the agricultural entrepreneur is the cooperative body, not the individual members, who may also be agricultural laborers, that is, linked to the cooperative by a relationship distinct from the one that entitles them to preemption.
Finally, Art. 48 of the law of May 3, 1982, no. 203 on agrarian covenants established the agrarian relationship directly with the farming family, which was deemed the owner of the farming family business;
Even after the aforementioned regulations, being a direct farmer continued to be the basic element for enjoying the right to exercise agricultural preemption.
Art. 7 of Act Aug. 14, 1971, no. 817 expanded the cases of preemption, providing for them also in favor of the direct cultivator owner of land bordering funds offered for sale, provided that no sharecroppers, tenant farmers, tenant farmers, co-tenants or direct cultivator emphytees are settled on the same.
The right of first refusal is vested in the neighbor, provided that he is simultaneously the owner and
direct cultivator and provided that there is no other direct cultivator on the land offered for sale, in which case the neighbor’s preemption does not arise.
The concept of “direct cultivator” is derived from the rule contained in Art. 31 of Law no. 590 of 1965, which provides as follows: “For the purposes of this law, those who directly and habitually engage in the cultivation of land and the raising and management of livestock shall be considered direct cultivators, provided that the total labor force of the household is not less than one-third of that required for the normal necessity of cultivating the land and raising and managing livestock.”
It should be borne in mind that the demonstration of qualification as a direct grower will have to be made and evaluated on a case-by-case basis, obviously taking into account all the documentation that the person who qualifies as a direct grower is able to produce.

Biennial bottom cultivation
One of the conditions for the cultivator settled on the land to exercise preemption is that he or she cultivates the land for a certain period of time: previously the rule stipulated four years, but following the amendment introduced by Art. 7 of Law no. 817 of 1971, the four-year period became a two-year period; (see Article 8, first paragraph of Law No. 590 of 1965): “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 purpose of the rule is to ensure, by prescribing a fixed period of residence on the land, a minimum of professionalism on the part of the farmer, which can justify the right of preference granted to him.
In this regard, case law has had occasion to make the following interpretive clarifications:
– The two-year period should be calculated on a calendar year basis, not a crop year basis, and it must be a fully elapsed period;
– It is not necessary that the title granting the right to cultivate the land be a single one for the entire two-year period, as it may be the case that for one period it is a lease and for another period it is a co-partnership or cultivation of the land by title;
– Cultivation needs to be based on an actual legal title, and therefore a commodity contract or a de facto settlement on the farmland would not suffice;
– The two-year period is to 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.

Failure to dispose of funds in the biennium
Another important requirement for the exercise of preemption is the requirement that the farmer “must not have sold, in the previous two years, any other rustic land of land taxable amount exceeding Lire
thousand, except in the case of transfer for the purpose of land consolidation” (former Article 8, Paragraph 1 of Law No. 590 of 1965).
The justification for this foreclosure is to evaluate that farmer’s behavior as speculative behavior and not as an intent to cultivate the land. The legislature considered not to give benefits to a person who in the preceding short period has shown little inclination for an income-generating use of the fund characterized by personal cultivation.
Regarding the issue of the transfer of agricultural land for the purpose of land consolidation, it was clarified that the case occurs, both in the case of sales to development entities financed by the Cassa per la formazione della proprietà contadina and in the case of sales to private individuals, when the person concerned makes such transfers in order to acquire other land with subsidized loans and tax benefits as well as with the control of the Provincial Agricultural Inspectorate, for the purpose of merging them into larger farm units.
As for, finally, proof of non-sale in the two-year period of funds, the notarized certification, adduced by the farmer, on the mortgage views limited, moreover, to the conservatory of real estate records in the territorial area of the tenant’s residence was deemed sufficient.

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo