The agrarian level: nature and competence

The livello is one of the many contractual forms still in use in the Middle Ages, but of Roman origin, under which a person, the so-called livestock man, was granted land for use, grazing or cultivation, often the sole source of livelihood, in return for the payment of a fee, the so-called censo.

Moreover, depending on the customs and traditions of the territory, such contracts could have the most disparate content in terms of contractual provisions, obligations, duration and usage fee.

Originally, almost without exception, the level grantor was represented by a nobleman or a religious institute, and then in more recent times and as a result of the evolution of society it passed mainly into the hands of Entities, including state agencies, until in the face of legislative changes or simple desuetude, the institution was reduced almost to the point of disappearance. The legal relationship that today comes closest to this contractual form is emphyteusis, which is nothing more than a right in rem of enjoyment granted – by contract – to a person, the emphyteusis, over a fund owned by a third party, by virtue of which he or she enjoys the faculty of full enjoyment over the fund itself, the so-called useful dominion, except for the burden of providing for its improvement in addition to the payment of an annual fee.

Even today, part of the real estate in some municipalities is still encumbered by levels, although the leveller has been granted the right to apply for theirenfranchisement according to the rules of the Civil Code, that is, the rules that precisely govern emphyteusis.

Although it arose as an agrarian contract, therefore, the similarity with the legal relationship of emphyteusis led the jurisprudence to first specify that the institution of the level was conceived by the legislature in its autonomy and therefore regulated with autonomous criteria, although partly coinciding, for example, with the legal regulation precisely of emphyteusis, until evolving over time and equating it, even overlapping it, with today’s emphyteusis precisely in view of the increasing approximation of the characteristics of the two institutions.

From an agrarian contract, therefore, the level can be said to have been transformed into a “mere” real right of a person over someone else’s land(see Cass. civ. Sec. VI – 2 Ord., June 6, 2012, No. 9135; Cass. civ., Jan. 8, 1997, No. 64, in reasons; Cass. civ., June 22, 1963, No. 1682; Cass. civ., June 12, 1961, No. 1366).

From this, it is well understood how, in the case of litigation, the specialized agrarian section–competent only for cases inherent in and arising from an agrarian lease contract–loses jurisdiction if the object of the application is merely to ascertain the existence of a level/emphyteusis right over the land.

As a result, claims for negative assessment and claims for enfranchisement from the level, remaining today outside the relationships regulated by the special legislation on agrarian contracts, are not subject to the procedural condition of the prior trial of the conciliation attempt set forth in Article 46 of the l. n. 203 of 1982 (cf. Cass. civ. Sec. III Ord., Feb. 15, 2018, No. 3689; Cass. civ. Sec. VI – 2 Ord., June 6, 2012, no. 9135), but to the different experience of the compulsory mediation procedure pursuant to Article 5, paragraph 1 bis of Legislative Decree March 4, 2010 no. 28, as it relates to real rights.

The situation changes, as mentioned above, in the case where one of the parties, along with the ascertainment of the existence of a level right on the land, has deduced in court the existence of a relationship abstractly qualifying as agrarian, thus bringing the dispute back among those devolved to the jurisdiction of the specialized agrarian section pursuant to Article 9 of Law No. 14 February 1990, no. 29(see Cass. civ. Sec. VI – 2, Ord., June 6, 2012, No. 9135).

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo