Originally, emphyteusis operated as a 'concession' agreement, where a landowner allowed another person to occupy, cultivate, and improve a piece of land for an extended time. Rooted in Roman Law, this practice aimed to ensure efficient land use.
The Deed of Emphyteusis shares similarities with deeds of sales and donations but has unique features. Many mistakenly view emphyteusis as outdated and unimportant, disregarding it as an ancient tradition. However, this perspective is incorrect, especially in Malta, where this type of deed remains crucial in the property market.
It is very important to understand that the emphyteutical concession (the contract establishing the emphyteusis) binds an individual by several obligations. For instance, there are clauses such as 'altius non tollendi,' which condition limitis how high a structure can be built. Restrictions might also regulate land use, prohibiting it for residential purposes or commercial ventures. Some clauses, albeit unusual, require the emphyteuta to attend a religious service once a year in memory of the landlord's ancestors, or to provide offerings to a religious institution during Christmas. While peculiar, these obligations are not easily dismissed; in fact, violations of emphyteutic conditions can result in the reversal of emphyteusis and eviction of the occupant.
It is a misconception to believe that emphyteusis merely entails an annual payment obligation and that rights and duties cease with the payment. The obligation to pay may cease, but the remaining responsibilities persist.
Hence, it is always advisable that when a property was once subject to ground rent, the original agreement should be sought out, found, and thoroughly examined by a notary. One cannot rely solely on the simplistic notion that emphyteusis ends with the payment. Unfortunately, the term 'freehold' is often used inaccurately. True freedom in property occurs when it is entirely unencumbered by any third-party conditions. Many properties labeled as 'free' are, in fact, not entirely free.
Regards,
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