An emphyteusis (in Maltese: cens) stands as a distinctive arrangement within property law, establishing a clear legal bond between the dominus and the emphyteuta (or utilista). While some characterize the dominus as the owner and the utilista as the tenant due to the annual ground rent paid by the utilista to the dominus, I am inclined to challenge this perception. Unlike conventional rental agreements, emphyteusis grants the emphyteuta not only usage rights but also the authority to dispose of the property without requiring permission from the bare owner.
When it comes to redeeming (in Maltese: fidi) perpetual ground-rent (in Maltese: cens perpetwu), the process appears straightforward as it involves paying a sum equal to twenty times the annual ground-rent at a five percent rate. However, in my role as a lawyer, rather than an architect, I frequently encounter common misunderstandings that extend beyond the mere redemption of perpetual ground rent. Here are some of the frequently asked questions:
(i) What occurs post-redemption? Are the utilista still obligated by contractual conditions like altius non tollendi?
(ii) How does a contract stating that perpetual ground rent is revisable (in Maltese: cens perpetwu rivedibbli) impact the situation?
(iii) Does submitting a redemption schedule (in Maltese: cedola) in court suffice?
(iv) Is it possible to convert a temporary emphyteusis (in Maltese: cens temporanju) into perpetual status and subsequently redeem it?
(v) If the utilista sells the property to another individual, does ‘laudemium’ ring a bell?
These are questions people ask me. Starting next week, I’ll publish a series of small publications to lend an understanding of the basics of emphyteusis and clarifying the above misunderstandings. As of next week, join me in this journey on this website.
