Preemption of the neighbor

Art. 7 of Act Aug. 14, 1971, no. 817 extended agrarian preemption to the direct cultivator who owns neighboring land (so-called neighbor’s preemption) with the following provision: the “right of preemption is also granted to the direct cultivator who owns land bordering on land offered for sale, provided that no sharecroppers, tenant farmers, tenant farmers, joint owners or emphyteusis direct cultivators are settled on the land.”
The function of neighbor’s preemption tends toward the amalgamation of agricultural land in order to improve the profitability of the land; that is, it is intended to encourage the formation of larger, more technically and economically efficient direct-farm enterprises.
The neighboring land receiving agricultural preemption must have its own cultivation and production autonomy. Moreover, it has been clarified that the existence of these elements cannot be given merely as a mere possibility and/or design of the parties, but must be based “on objective circumstances, and the relative inquiry must be conducted with reference to the situation existing at the time when the rights of first refusal and redemption are to be exercised” (ref. Cass. April 3, 1990 No. 2767).
The conditions for neighbor preemption to operate can be summarized as follows:
1. On the objective level, there must be contiguity of funds;
2. On the subjective level, it is necessary that a direct cultivator owner is settled on the contiguous land;
3. Subjectively, as an element of exclusion, it is necessary that there is no direct cultivator on the land offered for sale on the basis of a valid legal title.
Each of these conditions for the operation of neighbor preemption has provided occasion for jurisprudential and doctrinal debates.

Contiguity of funds
The concept of “adjoining fund” has been held (ref. Cass. March 26, 2003 No. 4486; Cass. July 17, 2002 No. 10337; Cass. November 9, 1994 No. 9319) to correspond either to that of adjoining in the legally proper sense, or to that of physical and material contiguity, r mutual contact along the common demarcation line whether this demarcation line is merely ideal or materialized with walls, hedges, fences or other signs. The concept of contiguity has been ruled out when the so-called functional contiguity occurs, that is, when the funds are separate but suitable to be merged into a single farm (ref. Cass. Aug. 6, 2002 No. 11779; Cass. Nov. 9, 1994 No. 9319).
Case law provides a long casuistry of factual situations that exclude contiguity, making the neighbor’s preemption unworkable:
– Interpodal road: bordering should also be considered the property not materially joined to
the one put up for sale whether the material separation is due only to an inter-modal road that insists on the land of the two estates and does not 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;
– Seller’s strip of land: it is not possible to create artificial diaphragms in order to eliminate the requirement of physical contiguity between the soils so as to preclude the exercise of preemption.
And again: ditches; vicinal road; public water; private water; adhering building; rural building; land used for camping.

Direct farmer who owns on the contiguous fund
The right of first refusal belongs to the neighbor as long as he is both the owner and direct cultivator of the neighboring land. It is necessary, then, that all the conditions set forth in Art. 8 law of May 26, 1965 no. 590 and, thus, the two-year cultivation of neighboring farmland owned by him and also the failure to sell rustic land in the previous two-year period, which is a condition for the right of first refusal to arise.
It is necessary, again, that the land bordering the one whose redemption is sought be cultivated directly by the owner, since the exercise of preemption is not provided for in favor of those on the land who practice livestock breeding or those who practice direct cultivation on land other than the bordering land (ref. Cass. July 27, 2002 No. 11134). It has also been clarified that these conditions cannot be considered to be supplemented by the mere activity of “cutting” grass that grows spontaneously on the land, which does not involve any act of productive management of the fund (ref. Cass. March 16, 2005, No. 5682).

Exclusion element
An element of exclusion of the neighbor’s preemption is the fact that there is a direct cultivator on the land offered for sale on the basis of a valid legal title.
It has been clarified that the neighbor’s right of first refusal does not accrue even if the direct grower settled on the land offered for sale has waived the right of first refusal to which he is entitled; and that there exists, conversely, the neighbor’s right of first refusal in the event that the tenant’s settlement has, prior to the execution of the deed, lost its stability as a result of an – effective – agreement under which the cultivator of the land sold has undertaken to release the land itself, an agreement which must, of course, take place with the owner and be ascertained precisely and without equivocation.
A recent Supreme Court ruling proposed the following new problem: whether in the fund in
sale the direct farmer has subleased, in agricultural preemption does the subtenant or the neighbor prevail? The Supreme Court held that it should favor the neighboring direct grower.
On the subject of waiver of the exercise of preemption, with relevance to the neighbor’s preemption, the following should be emphasized: the neighbor’s preemption arises only if there is no direct cultivator settled on the land being sold; if there is a direct cultivator, the neighbor’s preemption does not operate, even in the event that the direct cultivator intends to waive exercising his or her right of preemption on the land being sold. However, a waiver of the exercise of preemption is one thing; a waiver of the continued exercise of the lease that binds him to the fund is quite another. Therefore, if there is a waiver, on the part of the cultivator, of the renewal of the existing cultivation contract, it causes this case to be considered as a case of the absence of the cultivator on the land and therefore capable of giving rise to the neighbor’s right of first refusal (ref. Cass. April 21, 2005 No. 8369; Cass. June 1, 2001 No. 7450).

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo