What is the right of agricultural pre -emption?
The right of pre -emption is, in general, the right of a subject to be preferred to third parties, with the same conditions, in the conclusion of a given contract. In the agricultural sphere, said right of pre -emption is expressly recognized by the law both in favor of the tenant of the fund for sale (art. 8, law no. 590/1965), and, in the event that the tenant is missing, in favor of the owner of the neighboring fund (art. 7, law no. 817/1971).
Therefore, the owner who wants to sell agricultural land must always verify if there are subjects who can boast a right of pre -emption on the fund. If positive, the owner has the obligation of the cd. denuntiatioThat is, the preliminary contract of sale concluded with the potential buyer, in order to allow the reliable or the neighboring to exercise his right of pre -emption, within the term of thirty days, must notify the pre -process.
In the event that the owner omitted to fulfill this, the prelazione can still become the owner of the fund, exercising the cd. Agricultural retract within the term of one year from the transcription at the Conservatory of Real Estate Registers
of the sale concluded between the owner and the third.
It should be noted that in practice there is often the custom, by the seller owner or real estate agencies that treat the sale, to obtain the renunciation of his right of pre -emption before the so -called pre -empathious or neighbor. denuntiatio or even in the absence of it.
Well, it should be specified that before the notification of the preliminary contract by the owner no right to pre -emption, with the consequence that each preventive renunciation is nothing. In such cases, therefore, the neighbor (as well as the tenant), since the renunciation of the right of pre -emption is not valid, the so -called will well exercise. Agricultural retract in the planned terms and become owner of the fund.
The subjective requirements of the neighboring
Direct farmer
Art. 7 of law no. 817/1971 recognizes the right of pre -emption to the bordering on condition that he is a direct farmer, that is, he grows the fund in a habitual way and the workforce of his own or his family integrates at least one third of the needs to cultivate the fund.
The quality of direct farmer, for the purposes of the right of pre -emption, therefore exists in the event that the fund is cultivated in a habitual way; From this it follows that the only registration in the appropriate special section of the business register has a circumstantial value and does not meet, in itself, the requirements required by the norm.
The Professional Agricultural Entrepreneur (IAP)
The neighbor is the owner of the right of pre -emption even if, although not being a direct farmer, he covers the qualification of IAP (professional agricultural entrepreneur), that is, pursuant to art. 1 of Legislative Decree no. 99/2004, when he:
- a) you dedicate at least fifty percent of their overall working time to agricultural activities;
- b) revenues from the activities themselves at least fifty percent of their global work income.
Agricultural companies
Even the owners’ agricultural companies of the neighboring fund with that for sale are owners of the right of pre -emption as long as they have, like the neighboring natural person, the qualification of direct farmer or IAP
In this regard, it should be remembered that, for the purposes of the right of pre -emption, the qualification of direct farmer is acquired by the only parties of people (SS, SNC and SAS), when at least half of the shareholders is in possession of the qualification of direct farmer, as resulting in the special special section of the business register.
Capital companies (Srl, Srl, Spa or Sapa) have no right of pre -emption. As anticipated, agricultural companies are holding the right of pre -emption of the neighbor even if it has the qualification of IAP:
- a) at least one shareholder for people of people;
- b) at least one administrator for capital companies.
The objective requirements of the right of pre -emption of the neighbor
Absence of tenants
In the first place, it should be remembered that the right of pre -emption in favor of the neighboring exists, by express provision of the law, only in the event that on the Fund for sale “do not establish sharecroppers, colonists, tenants, sharing or direct farmers direct farmers” (art. 7, law n. 817/1971).
It follows, therefore, that the only existence of an agricultural rental contract on the Fund for sale does not bring the right of pre -emption by the neighbor and, therefore, the latter is not the owner of any right of pre -emption even if the tenant has renounced to exercise his right of pre -emption.
The border of funds
The most recent jurisprudence is quite rigorous in recognizing the right of pre -emption only to the owner of the fund which is actually bordering on the land located for sale. The contiguity must be understood in a material and physical sense, by mutual contact along a common demarcation line, having no relevance a possible cd. functional contiguity.
Therefore, the funds separated by an interpoderal road, by a nearby road (even if it is for private use), by a public channel, by a ditch of the water adduction (even if in common owners of the two funds), even if called land can be agreed in a single agricultural company are not considered neighboring.
The other requirements
Finally, the neighbor is the owner of the right of pre -emption, similarly to the tenant, provided that:
- a) cultivates the fund bordering for at least two years;
- b) has not alienated other rustic funds in the two -year period preceding the notification of the preliminary contract;
- c) the fund for which it intends to exercise the pre -emption, in addition to those already owned in property, does not exceed the triple of the surface corresponding to the working capacity of its family.
The attempts to avoid the right of pre -emption of the neighbor: the fractional sale and the so -called chastity belt
A frequent problem in practice is that of the cd. Fractional sale by the owner of an agricultural land which, therefore, gives in different parts of the entire plot. In this case, the owner of the neighboring fund can naturally exercise the right of pre -emption on the background portion that retains contiguity.
Therefore, there is no circumvention of the right of pre -emption if the fractional sale of the land does not affect the cultivation and productive potential of individual lots. On the other hand, the fractional sale of a single culture unit that would be destroyed with the splitting and, in this case, the neighbor has the right of pre -emption on the entire fund is not allowed.
The right of pre -emption of the neighbor does not fail in the hypothesis in which, on the occasion of the sale of the fund, the owner creates artificial diaphragms to the sole purpose of eliminating the requirement of the confinement between the funds, for example by reserving a band of land on border with the nearby fund, destined to remain sterile and/or uncultivated or in any case that it is without any usefulness for the owner who has alienated the remaining part of the land).
The complex sale of land
Often, in practice, the unitary sale of a complex of land contiguous with each other occurs, and one wonders if the owner of the fund that partially borders on the area for sale (therefore with one or some of the land) has the right of pre -emption and, if positive, if it can exercise it in relation to the only neighboring or the entire fund sold.
Well, it is affirmed in jurisprudence that if the sale has as its object a single inseparable poderal unit, the neighbor can exercise pre -emption on the entire area for sale, while, where the complex subject of sale is composed of a set of distinct and independent portions from each other for characteristics and cultivation and productive needs, then the neighbor can exercise the pre -emption with exclusive reference to those portions confined with its fund.
The presence of more neighboring
In the practice it often happens that there are multiple owners of the funds of the land with the land for sale, each of whom is therefore the owner of the right of pre -emption, with the consequence that the problem arises of identifying the prelazione that prevails over others.
The solution must be found in Law no. 36/2024, which attributes preference to young agricultural entrepreneurs and, specifically, between them must prevail, in order:
- 1) those who are aged between 18 and 41;
- 2) in the case of partnerships or cooperatives, if half of the members are agricultural entrepreneurs of an age between 18 and 41 years;
- 3) In the case of capital companies, if at least half of the share capital is signed by agricultural entrepreneurs aged between 18 and 41 and the administration bodies are composed, for at least half, by the same subjects.
If there are more neighboring ranking, the ultimate criterion is given by the subject who is in possession of adequate knowledge and skills to the best management of the fund.
This study was drawn up in collaboration with the lawyer Giorgio Canal of the Canal Law Firm.
