The Emphyteusis (iċ-ċens)

An emphyteusis (Cens) is a legal relationship between the transferor (the “dominus”) and the transferee (the “emphyteuta”) is established when property is delivered in emphyteusis. A ground-rent (cens), which is payable to the dominus or his successors in title by the transferee or his successors in title, is one of the conditions attached to the property in question.

When a property is purchased by title of emphyteusis, the acquirer (the emphyteuta) is required to pay the ground-rent due annually and to abide by the terms of the emphyteutical contract, which may limit what the acquirer may or may not do with the property.

There are various kinds of ground rent. The distinction between perpetual, transitory, and revisable ground-rent is of the utmost importance:

Perpetual Emphyteusis lasts forever, but it can be redeemed (or “jinfeda”) at any moment by the present emphyteuta by paying the dominus 20 times the ground rent. No one has the authority to interfere with or object to this right of redemption. The right of redemption may be exercised either through a contract signed by the parties in front of a notary public, or in the absence of such an agreement, the emphyteuta may do so by submitting a cedola (or schedule of redemption) to the court.

Temporary Emphyteusis ends when the initial contract for the emphyteutical concession’s time period expires. This signifies that the property will return to the dominus or his successor in title once the original grant expires. However, the law gives the emphyteuta the right to change the title into a lease or a perpetual emphyteusis if he is residing in the property in question as his usual residence (depending on certain circumstances established by law).

Revisable ground-rent. According to the provisions of the initial grant, the ground rent will occasionally rise if it is a revisable ground rent (ex: every 25 years). In some cases, the growth is predetermined (ex: the ground-rent will double every 25 years). However, there are instances when the ground rent will rise in accordance with other variables, such as the rate of inflation or the average minimum wage at the time of revision. Naturally, there may be substantial rises as a result. Additionally, in the case of a revisable ground rent, the emphyteuta only has a one-year window commencing from each revision to exercise his right to redemption. Besides the value of the redemption is calculated on the increased ground-rent.

At SBC Notaries we offer the below:

Guidance on issues involving emphyteusis
Drafting and publication of emphyteutical concessions
Contracts of redemption (fidwa)
Emphyteusis redemption through a court schedule (cedola)
searches for emphyteutical concessions at the root of the title

The Emphyteusis (Iċ-ċens) / Ask the notary