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Legal-tax information: Pre-emption of the neighbor

Legal-tax information: Pre-emption of the neighbor


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On the neighbor's pre-emption right (Il Contadino August 1999)

Lart. 8 of Law 590/65, as amended by Law 817/71, establishes, among other things, that the right of first refusal also belongs to the direct farmer, owner of land bordering on the funds offered for sale, provided that no sharecroppers are installed on them , colonists, tenants, co-participants and lofty direct growers. For the purposes of pre-emption, direct farmers are considered those who directly and habitually devote themselves to the cultivation of funds and the breeding or government of livestock provided that the overall workforce of the family unit is not less than one third of that required for the normal need for the cultivation of the fund and for cattle breeding and government. It is equally important to define the concept of property of the neighbor and to understand if the law is extendable to family members. The Cassation, with sentence of 26 March 1999 n. 2896, still intervenes in agricultural matters, excluding that the pre-emption and redemption rights can be recognized to those who assist the owner of the same in the cultivation of the fund, on the assumption that, even if a family business was configurable pursuant to art. 230 bis of the civil code, this would however have a purely internal relevance. It follows that the exercise of the right of first refusal by the neighboring owner would not be extendable to the members of the family farm business; as art. 48 of the law on agricultural contracts (which concerns the family farmer) in the case under examination at the Supreme Court, since there is no agrarian relationship between the alienating promissor and the pre-leasing company. In fact, the discipline of the family farmer enterprise refers, from an objective point of view, only to the relations of partial colony, rent and in general to any agrarian relationship between the land grantor and the farmer family. The consequence is that, only in cases where there is an agrarian relationship between the grantor and the cultivating family, each member (if there has not been the appointment of a representative) can act for the exercise of the agrarian pre-emption. Therefore only art. 48 of Law 203/82 would have given external relevance to the cultivating family, within an agrarian relationship, while the same external relevance could not instead be recognized, for the prevailing doctrine and jurisprudence, to the family business referred to in art. 230 bis, in which an internal aspect (constructed by the associative relationship of the family group as regards the regulation of the economic advantages of each participant) should be distinguished, and an external aspect (in which the figure of the family entrepreneur, effective manager of the company has relevance). In the present case, therefore, the only owner of the right of first refusal was the owner - farmer and not his family members, even if a family business existed, as the owner himself is not entitled to transfer the right of first refusal to these other family subjects, which, compared to the institute of pre-emption, remain third. Therefore, bearing in mind the purposes of the pre-emption of the neighboring grower owner (i.e. to increase the size of the existing agricultural enterprise already on a proprietary fund), in the event that the fund in question is transferred to a third party (also with the consent of the pre-emerator) there is a loss of the aforementioned specific interest, privileged by the legislator, with the consequent nullity of the purchase contract, having the rules on pre-emption and redemption of a public order nature, set to protect the social and agricultural and economic policy objectives pursued by the legislator.

Pre-emption and plurality of neighbors (The Farmer December 1998 - Dr. M. Gianpiccolo)

In terms of pre-emption, that is, the right to be preferred in the case of the sale of rustic land, disputes are numerous and often bloody, because the parties involved are very relevant. In the absence of tenants (or sharecroppers) on the land offered for sale, the right of first refusal belongs to the direct farmer, owner of the neighboring land. This must not be sold, in turn, funds in the previous two years (for a taxable amount greater than 1,000 lire) and must have cultivated its land in the last two years directly or with the help of family members. In the case of a plurality of neighbors with the rustic land offered for sale, the relative right belongs to each of them, with the consequence that, if a situation of conflict arises from several suitors, the decision lies with the judge. In fact, provided that everyone has the requisites required, the judge must grant preference to the one who, regardless of the area owned, demonstrates the best attitude to achieve the purposes pursued by law. This means that, among the many eligible neighbors, the one that will result, through the purchase of the fund, to the establishment of a production unit more efficient than the others, from a technical and economic point of view, will be preferred. With the pre-emption, in fact, the law aims to make a certain land reorganization, with the merger of several separate funds, and thus create more technically and economically viable production units. In giving prevalence to one or the other neighboring, the judge must disregard the temporal priority of the initiative of the same, as well as any preferences expressed by the seller. The useful elements are instead the slowness and the topographical, physical and cultural characteristics of the soils that can be merged, the excess of the workforce that the neighbors are able to pour onto the land offered for sale, as well as the stability over time, which the company to be increased can ensure. The judge can also take into account the outcome of these investigations and is deemed to be allowed, but only where the land offered for sale consists of a plurality of farms or functionally autonomous production units, also an amalgamation for distinct portions in favor of several neighbors. When, on the other hand, an instrumentally unitary fund is present and in any case constitutes a single suitable production unit, it is not possible to proceed jointly by the neighboring parties to exercise the right of first refusal. This works in favor of only one of them, and it is up to the judge to decide which one should be preferred. Unlike therefore in the case of a plurality of tenants on the sales fund, for which the possibility of joint exercise of the pre-emption is expressly provided, in the case of several neighbors, each must exercise his right, separately from the others, without however have no mutual communication burden. Jurisprudence has now consolidated and standardized on these issues. It is therefore to be excluded what happened in the past and that is the onset of a state of communion among all the neighbors who had invoked the right of first refusal. The owner who intends to sell an agricultural land must therefore be very careful about how he behaves in the presence of the right of first refusal by several neighbors. In this case, the law requires that each one be notified, by registered letter with return receipt, a copy of the preliminary sales agreement. Each one then, if he deems it appropriate, can exercise the right separately from the others. If this notification is not sent, the neighbor can take a redemption action, provided that it takes place within one year of the transcription of the sale to the land register.


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