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The Emphyteutic lease or long lease (sometimes emphythéose , of the Greek ἐμφύτευσις emphuteusis , “action to plant”) is a real lease of very long life, generally 99 years but being able to reach 999 years in certain countries, which confers to the taker a real Droit on the thing leased, with load for him to improve the funds in exchange of a moderate rent, the improvements being given with the financial backer in end lease without this last having to compensate the hereditary lessee. The emphyteutic lease in the beginning had been conceived for the development and the maintenance of rural big spaces, but he saw his framework of application extending to all kinds of real goods and thus applies today to the buildings of industrial or commercial use, as well as at the agricultural buildings or of dwelling.
The situation of the parts, in an emphyteutic lease, is rather particular since the tenant (called hereditary lessee ) sees himself recognizing a true right in rem on the good which is leased to him. The hereditary lessee is an quasi-owner of the good which is leased to him.
In right Congolese, the State, sole owner, can grant concessions, of which the ordinary category (in opposition to a perpetual concession) can be the long lease.
The emphyteutic lease finds its origin directly in the Roman law.
The long lease was, with Rome, a real Droit of pleasure called juice emphyteuticum and conferred on a good pertaining to others; it was established only on the rural properties, with the help of the payment of a periodic royalty, called gun.
The object of the contract of long lease was to allow to the owners great land fields, often badly cultivated, to ensure the development of their grounds without supporting the loads of them: execution of important work to put in culture grounds waste land, major transformation of the mode of cultivated ground exploitation, construction of farm buildings.
The emphyteutic lease entered the French right like element of heritage of the Roman law. Very much used under the Old Mode, preserved by the Revolution, it is governed today by a law of June 25th 1902 which was integrated in the rural Code.
For a few years, the experts have attended a " renaissance" emphyteutic lease, due mainly to the advantages conferred to the taker (with the difference of the tenant with commercial lease, agricultural lease or lease of dwelling, which are titular only of Droits personnel on the buildings taken with lease).
The emphyteutic lease can relate to buildings with use of dwelling, buildings rural or on buildings of industrial, commercial or artisanal use.
Duration of the lease
The emphyteutic lease must be agreed for one duration ranging between 18 and 99 years; it cannot contain any clause allowing a outcome before the flow of this 18 years duration:
if the lease is one duration lower than 18 years, it automatically is disqualified and requalified in ordinary lease with possibly authorization to build for the taker and loss of the tax statute of the emphyteutic lease;
- if the lease is one duration higher than 99 years, the extreme limit of the lease must then be brought back to the extreme limit envisaged by the law, that is to say 99 years.
At the end of the emphyteutic lease, the hereditary lessee becomes occupying without right nor title, except the possibility for him of being made authorize a new hiring.
Situation of the owner
The financial backer can obtain the legal cancellation of the emphyteutic lease, in the event of inexecution of the conditions of the contract or if the hereditary lessee made on the funds of serious deteriorations. However, when this cancellation is founded on the non-payment of the rents it must be founded on the non-payment two consecutive years of the long gun.
If the hereditary lessee carries out constructions or improvements, the owner benefits from it, at the end it lease, without having to pour allowance with the outgoing tenant: nothing however prohibits to provide that the financial backer will receive the constructions and improvements carried out by the hereditary lessee with responsibility of pour with this one an allowance.
The financial backer can also sell the rights which it holds of the emphyteutic lease.
Situation of the hereditary lessee
The hereditary lessee is held of the obligations falling on any tenant. These obligations are however adapted to the emphyteutic lease, namely:
it cannot be released from the payment of the royalty, nor to withdraw from the execution conditions of the emphyteutic lease by forsaking the funds;
- it must abstain from making any act or any change which could deteriorate the good;
- it is held of all the contributions and loads of the funds which is rented to him. It is indebted real estate tax burdening the building leased;
- it is held to make, on constructions existing at the day of the conclusion of the lease, all repairs of any nature. It is however not held to rebuild the buildings if it brings back the proof that those were destroyed by fortuitous occurence, major force or in consequence of a defect in construction former to the lease;
- it answers of the fire as well as any tenant.
A tenant quasi-owner
The emphyteutic lease confers to the taker a real right in rem; the hereditary lessee is thus invested prerogatives much broader than those from which profits an ordinary tenant. He enjoys the following, specific capacities thus to his situation of hereditary lessee:
possibility of improving the funds : if the hereditary lessee must generally improve the funds, it is held to make only the improvements which were envisaged by the lease. The long lease also implies freedom for the taker to complete all demolition and building work without the assent of the financial backer;
freedom to mortgage : the hereditary lessee can freely mortgage his right; this right can be seized like any real estate;
- hunting rights and of fishing : the hereditary lessee has only the hunting rights and of fishing;
- mines, careers and peaty : the hereditary lessee cannot open of new mine or career without the authorization of the owner but can nevertheless continue the exploitation of the mines and careers existing;
- freedom to rent and sub-lease : the hereditary lessee can lease the buildings which it builds. He can also sub-lease the buildings which he took with emphyteutic lease. The emphyteutic lease cannot consequently contain any clause prohibiting, limiting or regulating the right to rent or sub-lease of the hereditary lessee;
- freedom to authorize a negative easement and to acquire an active constraint;
- conclusion of a “under-long lease”? the hereditary lessee cannot sell the ground or the building object of its long lease; consequently, it cannot authorize itself of emphyteutic lease on although it holds already itself with emphyteutic lease: it must exert its right of long lease personally or yield it.
Right of exploitation
The hereditary lessee has a great freedom to exploit or transform the funds rented, since the emphyteutic lease will confer rights in rem to him real similar to those of an owner. He can thus exploit the funds itself or via a third (tenant-manager, farmer, tenant).
One of the characteristics of the emphyteutic lease holds with the royalty which had by the hereditary lessee to the financial backer, called “long gun”. The amount of the rent of the emphyteutic lease is a source of controversy, this one on the basis of the traditional idea according to which the long gun must be modest, even symbolic system.
The law does not comprise any relative tendency with fixing of the amount of the long gun but in practice it is relatively low when a clause of the contract obliges the hereditary lessee to make improvements to the bottom. It is considered however today that the emphyteutic lease is a particular mode of exploitation of a good, with equality with the commercial lease and the agricultural lease. The rent of an emphyteutic lease must thus be evaluated like a normal rent, and either systematically according to a modest amount or symbolic system.
The gun is paid by the periodic taker of way, generally by annual installments. The parts are entirely free to be appropriate for their own way of the methods of the payment. There does not exist obstacle of principle so that the rent is versed to some extent with the signature of the lease and the surplus in the form of periodic royalties.
In Québécois civil law, the term “long lease” replaced “emphyteutic lease”, considering that the term “lease” refers to the hiring, from which the long lease is distinguished which is in fact a dismembered form of the property. The long lease is a land contract of long life relating to a good, in virtue of which the taker (or hereditary lessee) commits themselves n the other hand making improvements of the right to enjoy the real estate like owner for the specified period.
This institution today is mainly used within the framework of the great projects of urban development.
- Lexicon of the terms of real goods
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