The notary’s role when parties are transferring property held by title of emphyteusis

Abstract

The institute of Emphytuesis, although not as common in today’s practice, was once a very popular means by which one transfers property in Malta, as well as in other continental jurisdictions. Emphyteusis is a real right which therefore, attaches to a property even when transferred to different persons, and being such a strong title, the emphyteuta is allowed to dispose of the property without the need of consent from the dominus. Therefore, Notaries today tend to come across many properties that are being transferred, which have been subject to emphyteusis for a number of years. In such cases, it is important to not only understand the title of emphyteusis, but also any conditions which might be attached to such a property. In this report, the institute of emphyteusis will be explained and examined from a practical Notarial perspective. Thus, in this report, there is an outline of how different types of emphytuetical grants may be redeemed, and how ground rent is to be apportioned, as well as other practical issues which are tackled by Notaries in their practice. It is of great importance for the Notary to understand the unique components of the emphyteusis in question in order to be able to give adequate advice on the subject.