emphyteotique lease

A term derived from the Greek emphyteuein, 'to implant'. A form of long-term lease that was an institution of Roman law (although derived from the Greek law) and found in the civil and French law. An owner of poorly cultivated land granted such leases at the time of the Roman Empire so that a tenant would take on the task of improving the land. The tenant paid a small rent or canon for this right and the owner regained the land in its improved condition after a number of years. During the period of user, the holder of the lease had a form of ownership that he could alienate, create servitudes over and mortgage. In modern usage, an emphyteotic lease may be described, for example, as "a contract by which the proprietor of an immovable conveys it for a time to another, the lessee subjecting himself to make improvements, to pay the lessor an annual rent, and to such other charges as may be agreed upon", Civil Code of Lower Canada, art. 567 (a similar definition is contained in the Quebec CC, art. 1195) (Lampson v City of Quebec [1921] 1 AC 294, 295 (PC)). The law in France accepts a similar interpretation, although it is not mentioned in the Civil Code and was not given statutory effect until a Law of 25 June 1902 (although it is now incorporated in the Rural Code (C. rur. L. 451-1)). An emphyteotic lease is similar to a right of usufruct, except that it can only be granted in respect of real property (immeubles) and cannot be acquired by gift. Also an emphyteotic lease cannot be granted for a life.

In French law, the essential elements of this form of lease are: (i) the lease is long-term (between 18 and 99 years); (ii) the lessee is obliged to maintain the property (including being responsible for the structural repair of any building on the land) and is usually obliged to make improvements to the land or erect new buildings thereon; and (iii) the lease is a real right (droit réel) and it may be alienated or charged as security (subject to any restraints contained in the lease), but it cannot be abandoned. The lease may be renewed by agreement, but there is no automatic right of renewal. Although originally intended as a form of lease of agricultural land, an emphyteotic lease can now be granted (as it often is) for the use of land for residential, commercial or industrial building. Sometimes spelled 'emphyteutic' lease. In Quebec, the right (l'emphytéose or bail emphythéotique is a real right (akin but not equal to the ownership of land: Racine v Quebec [1989] RJQ 1112 (PQ CA Can)). The holder is obliged to improve the leased property; must carry out such repairs as are imposed on him; must not let the property deteriorate, nor commit waste; the lease may be a minimum of 9 years and a maximum of 99 years; the holder is obliged to pay the lessor an annual rent and such other charges as may be agreed upon; the holder can mortgage the property; at the end of the term the owner receives full ownership, without any obligation to pay an indemnity for the improvements made to the land; and there is no tacit right of renewal (Civil Code of Lower Canada, arts. 567–582). Cf. droit de superficie. See also bail á construction, concession immobiliére.

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