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Emphyteusis is a right, susceptible of assignment and of descent, charged on productive real estate, the right being coupled with the enjoyment of the property on condition of taking care of the estate and paying taxes and sometimes a small rent. For this reason it can commonly be called "ground rent" or "perpetual lease" in English.
It started in the early Roman Empire and was initially granted by the state for the purposes of agriculture or building on land. In essence it was a long-term lease of an imperial domain of private land for a rental in kind. The title existing before emphyteusis was ius in agro vectigali. The emphyteusis gave the lease-holder (emphyteuta) rights similar to those of a proprietor, although the real owner remained the person to whom the rent (canon or pensio) was paid. Nevertheless, the tenant gained most of the rights of the owner. Accordingly, he could maintain actio vectigalis in rem against any one to recover possession of the land thus leased to him. Under certain circumstances, the land returned to the owner, as in the case of the death of the emphyteuta without an heir, non-payment of the rent or taxes for three years (or two years in case of land held of the Church), lapse of time if a term was fixed in the original agreement, contractus emphyteuseos, which was a specific contract and neither an ordinary lease nor a sale. The rights of the emphyteuta embraced the full use of the land and its products and were alienable and transferable by testament or ab intestato.
Emphyteusis is still found all throughout the world in different countries. It is a system that has survived many revisions to real estate law around the globe. It is known to be in operation in Canada, France, Italy, Portugal, Malta and Scotland.
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- Poste, Edward (1904). Institutes of Roman Law by Gaius. Clarendon Press. p. 430.
- Berger, Adolf (1953). Encyclopedic Dictionary of Roman Law. French University. p. 452.
- Agency, Canada Revenue (22 June 2017). "Emphyteutic Leases". aem. Retrieved 2019-06-09.
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