Emphyteusis

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by: advokatu | alimentu
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Date: Fri, 20 Jan 2012 Time: 7:35 PM
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Concept of Emphyteusis

Emphyteusis is a real right to use the plot of land or other immovable of another provided the emphyteutic lessee does not aggravate its quality, does not undertake to build construction works, to plant perennial plants and perform other works thereon that durably increase its value both of the land used or any other immovable thing except upon the permission of the owner of the land. Emphyteusis may be established for a fixed or an indefinite period. The term of emphyteusis may not be less than ten years.When the owner or the emphyteutic lessee changes, emphyteusis remains due, provided assignees use the leased thing properly and fulfil other obligations stipulated in the act constituting emphyteusis.

Emphyteutic Canon

The act constituting emphyteusis may stipulate that the lessee is to pay the owner of an immovable thing a lump sum or to pay by instalments.

Establishment of Emphyteusis

Emphyteusis is established by agreement between the owner of an immovable thing and the emphyteutic lessee or by will.

Contents sutartis of Emphyteusis

Unless the act constituting emphyteusis provides otherwise, the lessee shall use the leased immovable thing as its owner, however he shall not increase its value essentially, he also is not entitled to change its destination without the permission of the owner. If emphyteusis is established in respect of land, the act constituting emphyteusis may stipulate the right of the lessee to build construction works or plant plants necessary for the use of the land in accordance with its destination. The emhyteutic lessee is bound to preserve and repair the immovable at his own expense. Unless provided otherwise, the emhyteutic lessee enjoys the fruits produced by an immovable thing. The act constituting emphyteusis may stipulate that the emhyteutic lessee is not entitled to assign his rights to another person or divide emphyteusis without the consent of the owner. Unless the act constituting emphyteusis provides otherwise, the emhyteutic lessee has the right to sublease. The sublessee shall not have more rights than the emhyteutic lessee. The sublease terminates upon the end of emphyteusis.

Extinction of Emphyteusis

Emphyteusis is extinguished:

1) by the expiry of the term;

2) by the loss of the object of emphyteusis;

3) by the extinction of emphyteusis by a court judgement;

4) by the union of the qualities of owner and emphyteutic lessee in the same person;

5) by non-user for ten years;

6) by a mutual agreement of parties.

On the initiative of the owner and the emhyteutic lessee grounds for premature extinction of the emphyteusis may be stipulated in the act constituting emphyteusis.Emphyteusis may be modified or cancelled by a court judgement on the request of either the owner or the emphyteutic lessee, provided that unforeseen circumstances appear whereby it is impossible to use the thing in conformity with to earlier conditions. Upon the extinction of emphyteusis, the emphyteutic lessee is bound to return to the owner the object of emphyteusis. The emphyteutic lessee is to be reimbursed for the value of the improvements of the object of emphyteusis, provided that the improvements have been made upon the consent of the owner. The emphyteutic lessee is entitled to suspend the transfer of the object of emphyteusis till the time when the owner repays the compensation. The owner can retain the thing belonging to the emphyteutic lessee till the time the lessee settles accounts with him. If the act constituting emphyteusis stipulated the right of the emphyteutic lessee to build construction works or plant plants necessary for the use of the land in accordance to its destination, at the extinction of emphyteusis, the emphyteutic lessee can remove construction works or plants, if he returns the land to its former condition and unless the act constituting emphyteusis provides otherwise.

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