Preemption and plurality of neighbors: applicability of preferential criteria

The neighbor’s right of first refusal, governed by Article 7 of Law 817/1971 in coordination with Article 8 of Law 590/1965-with the exclusion, however, of the requirement that the land has been under cultivation for at least two years, given the different rationale underlying the two institutions-is recognized and exercisable even in cases where there are several contiguous plots of land to the one being offered for sale.

This circumstance does not create enforcement problems when only one of the neighbors is interested in exercising the right of first refusal, whereas everything changes if there is a willingness on the part of a plurality of neighbors to exercise the aforementioned right.

In order to settle the disputes that would inevitably arise, the Legislature in 2001 intervened by arranging an order of preference based on precise and imperative criteria. Article 7 of D. Lgs. 228/2001, in fact, provides for the recognition of preference in “the presence, as participants in the respective enterprises, of direct cultivators and principal agricultural entrepreneurs aged between 18 and 40 years or in cooperatives of associated land management, the number of them as well as the possession by them of adequate knowledge and skills within the meaning of Article 8 of Regulation (EC) No. 1257/99 of May 17, 1999,” i.e. – in the latter case – of specific subjective qualities aimed at the receipt of Community aid in order to facilitate the initial establishment of young farmers, as well as objective qualities concerning the viability of the Farm and compliance with minimum environmental, hygiene and animal welfare requirements.

It should be clarified that the status of “co-participant” under this article is not assimilated to that of “coadjutor” for the purpose of taking advantage of the preferential criterion accorded to young direct farmers.

A cultivating family within which one of the members theoretically meets the age requirements stipulated in the aforementioned Article 7 of Leg. 228/2001 cannot therefore be granted the right to be preferred over other neighbors in the exercise of the right of first refusal under the above-mentioned domestic and EU regulations.

The sole proprietor, according to Article 7 of Law 817/1971 remains the sole owner of the neighboring land and therefore cannot be extended to different parties, even in the case of stable and prolonged collaboration as a member of the farming family. Blood ties are not – in fact – relevant in the context of exercising the right.

In this sense, clarifying are the numerous pronouncements of the Supreme Court, which has repeatedly ruled that, in light of the peremptory nature of the listing of the requirements necessary for the exercise of the right of pre-emption provided by the sector regulations (Article 8, L. 590/1965 and Article 7, L. 817/1971), the right of pre-emption and the related right of redemption cannot be recognized in the hands of anyone other than the person who is the holder of the rights themselves, i.e. the tenant farmer or the owner of the confined property.

Therefore, such rights will not be able to be recognized in the head of those who assist the “owner” person in the management of the fund that gives right to preemption, even if in the presence of a family business within the meaning of Article 230 of the Civil Code, since the intercurrent relations between the persons belonging to the aforementioned family unit do not have external relevance to the alienating owner-promoter of the fund subject to the right of preemption (for all, see Cass. Civ., Sec. III, March 26, 1999, No. 2896).

Given the absence of preferential criteria in the head of all the neighboring parties who intend to exercise the right of pre-emption on the fund put up for sale, in the impossibility therefore of finding a solution in the legislation, the point of reference again becomes the jurisprudence, whose now consolidated orientation is to give importance, in case of litigation, to the evaluation of which of the parties involved would be able to draw the best business arrangement following the amalgamation to its own business compendium of the fund in dispute (cf. Cass, Sec. Un. Oct. 18, 1986, No. 6123; Cass. June 8, 1995, No. 8701). It would be necessary, for this purpose, to consider, by way of example, the extent of the funds, the result that would result from amalgamation following the exercise of the right of first refusal, the comparison between different business realities, and so on.

No significance is given, however, to the time at which each of the claimants expressed their willingness to exercise the right of first refusal since in no way does the time criterion constitute a preferential criterion of choice.

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo