The Greek word emphýteusis , which can be translated as "implantation" , came into Latin as emphyteusis . The idea arrived in our language as emphyteusis, a term used in the field of law .
Emphyteusis is a mechanism that consists of transferring the useful ownership of real estate through the payment of an annual fee and a laudemio each time that ownership is transferred. It is important to mention that the right that must be paid to the lord of the direct domain whenever the possessions granted in emphyteusis are alienated is called laudemio.
The transfer involved in emphyteusis takes place over an extended period or even in perpetuity . In more precise terms, there is a contractual figure called emphyteutic contract , which allows giving rise to the obligation to constitute an emphyteutic type real right in relation to a specific real estate. Generally, for this to take place it is mandatory to register it in a public registry.
This type of contract has a series of well-defined characteristics that allow us to distinguish it from others. Let's see the most relevant ones below:
* It is consensual : it is enough for each of the parties to give their consent for the contract to be perfected;
* produces certain obligations : once the emphyteusis contract is perfected, each party obtains the right to demand that the other fulfill its obligations;
* is onerous : the parties carry out an exchange of assets that arises from the very nature of this type of contract;
* It is reciprocal and bilateral : it requires the will of two people, to each of whom certain obligations are attributed;
* is commutative : the obligation expressed in the contract is supported by the assumption that it is equivalent for both parties.
Through the emphyteutic contract, the owner of a property agrees to transfer his useful domain , although not the direct one , receiving in exchange a fee that is paid annually and the bonus each time the domain is sold. In certain cases, more benefits are also included in the agreement.
The distinction between useful domain and direct domain is key in emphyteusis. Both are dissociated: the owner of the property maintains direct ownership, but transfers - in exchange for the considerations already mentioned - the useful ownership. This means that the emphyteuta, as long as he pays the fee, has the power to make decisions about the economic exploitation of the property and keeps the benefits.
If the emphyteuta stops paying the fee, the emphyteusis comes to an end and the property recovers its previous state. In this way, the owner of the direct domain also takes back the useful domain.
It is interesting to note that the nature of an emphyteutic contract is not different from that of the so-called pre-contract , one that obliges one or both parties to enter into another contract in a specific future instance. The pre-contract conditions may be different in each case; For example, include a time period that limits the date of compliance.
Returning to emphyteusis, it could be the promise (note that this term is synonymous with precontract outside the legal field) that a contract will be concluded in the future if the registration in the public registry were taken as a contractual act in itself. This point of view generates a division in the doctrine.
At a historical level, emphyteusis appeared in Spain already in the Middle Ages, within the framework of the feudal regime. Although the formula that was most used at that time was leasing, in the lands belonging to the Crown of Aragon, emphyteusis could be seen with some frequency; In fact, to this day it still remains in Catalan civil law .