Realestate law: what is anemfiteutical census?
We thank Espinet Advocats for an article made by them because it has allowed us to improve points 4, 5 and 6.
Emfiteutical census is a tax in force in Catalonia, very little known, although it must be said, that there is a little likelihood of paying this tax. In this text we avoid you a double shock of facing an unforeseen payment and not knowing a current legislation. In this sense, we remind you that ignorance of a regulation is no excuse for not complying with it.
Part One: Census: definition, historical context and involved parties
1. Emfiteutical census: definition and small glossary of specialized terms that appear in it
Where does the name of the tax in question come from?
The word 'census' comes from the Latin word 'censere' which means to count. While emfiteutic derives from the Greek "ἐμφύτευσις" - "emfýtefsis" transcribed into our Latin alphabet- and means 'to institute'.
Emphytefsis census means: 'to institute a census' this action is consistent due to the fact that no tax can be levied without having a record of the population subject to it.
We now address the technical definition of the concept 'emfiteutical census':
'Perpetual nature payment and redeemable at the will of the grantor which, in addition to the annual periodic pension, may grant the grantor the rights of 'lluïsme' and 'fadiga', if it has been stipulated in the title of constitution'.
Source: termcat
We help you to better understand the definition with an additional vocabulary:
a) Concedent, censalista or censualista (in Catalan): 'Natural person owner of the land where the real estate product where we live has been built with the right to charge us since we live on a land of his/her'.
Source: Own elaboration
b) Right of 'lluïsme': 'Right of the lord to receive a part of the value of the emfitéutic or feudal thing that is transmitted to a third person (...)'.
Source: enciclopèdia.cat
c) Right of 'fadiga': 'Right of preferential acquisition that has the censatario and, if there is agreement, also it *censalista, of the estate engraved with a census in case of alienation.'
Source: termcat
d) Real estate alienation: 'Concept refered to the fact that if the property changes of owner for some reason (sale, eviction, transmission, etc.), the new master will continue being the owner of your housing until the contract accomplish five years'.
Source: api.cat
2. Historical context of the tax
The emfiteutic census originated in Roman Law. In spite of this, it reached its zenith in the Middle Ages when there was no citizenship (in Rome citizenship was very reduced but it existed). In the estamental society, born when the feudal lords were much stronger than the king -from the VIII to the XV century- two levels had the ownership of the land -nobles and monks-. On the contrary, the third, peasant serfs, only worked the land.
Part Two: Technical study of the tax and the four types of existing census
3. Technical study of the tax
a) The two parties that take part in the payment of the emfiteutic census are:
- Grantor, census taker or census taker: person who holds the ownership of the land on which the census is levied by virtue of the assignment of the census.
- Assignee or emfiteuta: person who pays an annual and monetary pension to the grantor.
b) Taxable event and taxable base:
- Taxable event of the censo emfitéutico: the legal fact from which the tax obligation to pay the censo emfitéutico arises is to own a house in a place assigned by a person with a noble title and owner of the land where the house stands. In accordance with this cession, and, according to which of the four types of census is in force, he will receive compensation or obtain powers over the property he has ceded.
- Taxable base of the emfitéutic census: the one that the law establishes at the moment of legal constitution of this one.
4. What are the four types of existing census?
a) With ownership
Legal powers of the individual census taker:
- He/she collects the pension established when the census is constituted
- He/she Receives a percentage participation for each transfer of the property recorded with the census
- He/she has the right of preferential acquisition to recover for each onerous transmission
- He/she has the right to be recognized by the owner and by third parties
b) Of nuda perception
Legal powers of the individual census taker:
- He/she can collect the pension
- He/she holds the "fadiga", we remember that it is the right of preferential acquisition that the censalist has in case of alienation.
He/she does not hold the 'lluïsme', we remember that it implies not being able to receive a part of the value of the emfitéutic or feudal thing that is transmitted to a third person.
c) Without dominion
Legal powers of the natural person censualist:
- He/she has only has the right to collect the pension
d) The "revessejat".
Legal faculties of the natural person 'censualista':
- The 'useful domain' is reserved to him to become a census taker, and he has the power to a third party, new censualist, the right of census in any of the previous modalities.
Third part: Evolution of the legal framework which makes it possible to 'redeem' the census in a legal way.
5. I am owner of a housing, estate or ground recorded by the census *emfitèutic. I want to liquidate definitively the tax. Can I do it in a legal way?
Yes, by 'redeeming' the census. The first step is its payment to the grantor.
This payment has to be done:
(a When the emfiteuta is up to date with the payment of: pensions, "lluïsmes" and other concepts inherent to the census.
b) In accordance with the legislation in force at the time of constitution of the census to be redeemed.
6. We analyze the current law: Which is the competent Administration to regulate the census, the state or the autonomous one? What criteria does the current law establish? Does it significantly reduce the redemption in relation to the previous regulations?
The competent Administration is the Generalitat de Catalunya. In addition there is the Catalan Civil Code that is not like Spanish one.
The current law is the 3/2023 of March 16, "fiscal, financial, administrative and public sector measures for 2023" you can access the current legislation here.
It establishes three criteria:
The redemption has to be formalized in a public deed, which may be granted unilaterally by the censualist. Previously, only the censualist was the only person authorized to grant the notarial deed of redemption. The notarial deed of redemption will have to be registered in the Land Registry, so that the whole process is legally valid.
The census taker is entitled to a redemption price equivalent to 1% of the cadastral value of the census property at the time the redemption is exercised, plus an additional 1% if the right of 'lluïsme' is registered in the Land Registry. The aforementioned twenty-second transitory provision is added. It states: "in the event that the cadastral value is not known, the census taker will take as the value of the property that which appears in the registry inscription of the last transfer (updated with the General Index of Consumer Prices)".
The amount of the redemption will be paid in cash or by means of a notarial deposit at the disposal of the*censalist.
Yes, we can see the cheapening in figures calculated by Espinet Advocats: to redeem a census in 1990 represented to pay 20% of the cost of the real estate product. In 2023 it represents only a 2%.
We hope to have contributed to the knowledge and understanding of this tax.
Click on this link and ask us any additional questions. In case we manage a property where you live you can contact your property manager.