Emphyteusis

Emphyteusis is a type of land lease that exist in many civil law jurisdictions. Technically emphyteusis is a so-called real right, which means that it can be sold, inherited or mortgaged by the lessee. Basically the lessee can act as if he were they landowner, while the legal owner is for the duration of the lease deprived of the enjoyment of his property, hence he is referred to as “bare owner”.

Though the holder of an emphyteusis has a position similar to a landowner, his main obligation is to pay a fee (in Dutch this is called canon) to the bare owner – usually once a year. Unless restricted by the particular terms of the contract, the lessee is entitled to do whatever on “his” land as any landowner would be. If an emphyteusis is transferred to another (through sale, inheritance or gift) all restrictions are also transferred to the new lessee.

The duration of an emphyteusis can be either indefinite or for a fixed period of time (after which the contract could be prolonged), though some jurisdictions (such as Belgium) only allow fixed-term contracts. A typical duration is 99 years. After the lapse of the contract duration the bare owner will resume his rights (unless, of course, the lease is prolonged). The emphyteusis can only be terminated before the contractual end by the bare owner if the lessee is defaulting on its financial obligation.

On this site we regularly express the opinion that in space settlements the government should own all land and that citizens should be able to lease land. The legal figure of emphytheusis will be beneficial in several ways. First the legal position of lessees is strong. Secondly, the government is ensured of funding and thirdly, the government has some control about real development by including restriction in the term of lease. Additionally land speculation is discouraged, as would-be speculators has to pay periodic lease fees.

In regard to the law on emphyteutic leases, we propose some measures. First, there will be a maximum term of 99 years (subject to prolongation at the end of term). Second, the annual canon will be corrected for inflation. Third, only citizens and permanent residents will be allowed to lease land.

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5 thoughts on “Emphyteusis”

    1. Land is here, on this site, defined as the wall of a rotating space habitat, which would be quite similar to “land” on earth – so we could write land without quote marks.

      Asteroids are a little bit more complicated as the are required for the construction of space habitats and for the goods used by their inhabitants. However, the amount of asteroidal resources is large enough to meet human demand for a few centuries, maybe even longer. Therefore I would argue that they could be appropriated by space settlers.

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