EMPHYTEU'SIS (Lat., from Gk.ipptirevats, an implanting, from //vpuretifiv, emphyteuein, to implant, from emphytos, implanted, from cm phyein, to implant, from /v, en, in Oetv, phyrin, to plant). At Roman law, a perpetual, alienable, and heritable right of pos sessing and enjoying agricultural property in con sideration of the payment of an annual ground rent. This institution, as it is found in the laws of Justinian. had two roots. (1) In Italy. during the period of the Roman Republic, assignments of lands belonging to the Roman people or to a municipality were made to private persons, nomi nally at the pleasure of the Roman people or of the municipality, hut practically on an indefinite. alienable, and heritable tenure; and for the use of these lands a fixed payment (vecligal) was made. Lauds so held were termed agri veeti gales. (2) In the eastern provinces of the Roman Empire tracts of unimproved land were granted, on a perpetual tenure, for improvement or 'plantation' (emphytensis), in consideration of a fixed annual ground-rent (canon), which was regularly based on the value of the unimproved property; and such grants were not infrequently made by private proprietors. When the Empire became Christian, such grants were made also by churches and monasteries.
Neither of these institutions, ins in agro recti gali or emphytensis, could be brought under the Roman law of lease (locatio comInctio), because the Roman lessee had no protection against third persons except through his lessor, and no protec tion against his lessor except, in ease of breach of contract, by action for damages; while the holder of an cmphyteusis was protected against his landlord, and the holders of ins in agro recti ga-li or of emphyteusis enjoyed the same rights of action against third persons as if they were owners. Both therefore had, what the Roman lessee had not, a right in the land itself. These
two institutions were fused by Justinian into one. As against the landlord the emphyteutist had the right of possession and enjoyment, under the following limitations: He keep the land in cultivation; he must pay the taxes on the land; he must pay the annual ground-rent to his landlord; and, if he proposed to sell his right, he must inform the landlord of his intention and of the price offered. The landlord had then the right either to buy the emphyteusis himself, at the same price, or to exact two per cent. of the price. The landlord had the right of reentry upon the land when it was sensibly deteriorated by neglect or misuse; when taxes or ground-rent had not been paid for three years; when notice of inten tion to sell was not given; or when the price offered was not truthfully stated. Teutonic law developed a similar institution, brown as heri table leasehold ( cebpach I.
1\ledh•val jurists were inclined to construe both em pity te usis and crbpac•hI as a divided owner ship, attributing titular ownership to the land lord and beneficial ownership to the occupant. See Domilyit M.) The revolutionists of the eighteenth and nineteenth centuries disliked these perpetual leaseholds as savoring of feudalism; and in States the ground-rents were either abolished or provision was made for their re demption. In some European States, however, the institution survives, sometimes under the name of et-bpchi, sometimes under that of em ph ytensis, with More or less blending of Roman and medireval rules. For the Spanish law, see CENSO.
For the perpetual leasehold of urban property, see SUPERFICIES. Consult the authorities re ferred to under Cm'. LAW.