Land lease contract and prior right of lessee to concluding the new land lease contract - case of Slovakia

• Author: Anna Bandlerová - Jarmila Lazíková
• Position: Department of Law, Faculty of Economics and Management, Slovak University of Agriculture in Nitra - Slovak University of Agriculture in Nitra
• Pages: 304-320

STUDIES AND COMMENTS

Land lease contract and prior right of lessee to concluding the new land

lease contract - case of Slovakia

Professor Anna BANDLEROVÁ

1

Ph.D. student Jarmila LAZÍKOVÁ

2

Abstrac t

Land lease is one of th e few possib le ways to use the agricult ural land effective ly.

This is caused by probl ems in the propri etary and user relati onships, therefore the

agricu ltural l and lea se and its legal regulat ion is espec ially importa nt for Slovak ia. This

paper deals wi th the selected legal arrang ements relate d to the agric ultural lan d lease in

Slova kia w ith an objective to ident ify applicat ion problems faced b y lessees and lessors of

agricu ltural land. When regula ting the agricult ural land lease relation ships, the Slova k law

maker pre fers d ispositive leg al n orms. However, this meth od is rarel y used in the

appl ication practice. Contractin g partie s often focus o nly on obli gatory chara cters of the

contra ct, relying on th e legal text of dispositive provision s. The lega l arrange ment of the

lessee’s p rior right to sig n the n ew lease contract a ttracts a parti cular atten tion. Current

legal reg ulation of this l essee’s righ t seems to be un enforceable; on the other hand, it

colli des with the b asic human right s. This provisio n needs to be eithe r ca ncelled or

adjusted so tha t it a chieves th e objective defined by the law mak er and so that it is leg ally

enforceab le in complian ce with superi or legal norms

Keywords: agricu ltural land , land lease, lan d lease contra ct, prior right o f lessee

JEL Cla ssification: K12,

1. Introduction

Current state of the land ownership in Slovakia is affected by the two basic

problems. First, it is a problem of unjustified land ownership caused by

inconsistent registration in the past. Owners of approximately 20% of agricultural

land – the so-called unknown owners’ land, are unidentified today. This land

cannot be the subject of the purchase and sale due to the unidentified seller. It is

administered by the Slovak Land Fund

3

, the legal person established by the law for

the purpose of administration of the state land and the so-called unknown owners’

1

Anna Bandlerová - Dep artment of Law, Faculty of Economics and Management, Slovak University

of Agriculture in Nitra, Anna.Bandlerova@Uniag.Sk

2

Jarmila Lazíková - Slovak University of Agriculture in Nitra, PhD. student of P aneuropean

University Bratislava, Jarmila.Lazikova@uniag.sk

3

Slovak Land Fund is the legal p erson, established by the Law N o. 330/1991 Collection, registered

in the Business Register and administering the st ate land and the unknown ow ners’ land. The Fund

currently administers app roximately 25% of the total area of agricultural land in Slovakia. T he

unknown owners’ land represents 20% of t his area; 5% represents the land owned by t he state.

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land.

4

Second, there is a problem of extreme fragmentation of the land ownership

manifested in two ways - in fragmentation of the ownership right towards the land

and in technical fragmentation. Fragmentation of the proprietary right is

characterised by a high number of land co – owners (12 – 15 co – owners per 0.45

ha of land)

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and a very low average area of the land ownership per one owner

(often in ten-thousandths). Technical fragmentation is manifested through scattered

small area lands owned by the same owner in the terrain and through the limited

access, or through no access of the owner to this land. These problems cause that

the major area of the land (it is estimated that around 90% of the agricultural land)

is the subject of lease. Owners and the Slovak Land Fund let this land on a lease for

agricultural subjects (agricultural cooperatives, agricultural commercial

corporations, or farmers). Therefore, the legal regulation of agricultural land lease

and its individual legal arrangements require the attention of Slovak law maker,

too. The paper deals with the selected legal arrangements related to the agricultural

land lease in Slovakia with an objective to identify application problems faced by

the agricultural land owners as well as agricultural subjects farming on the leased

land.

2. Lease contract

Lease contract is regulated in the § 663 – 684 of the Civil Code. However,

Law No. 504/2003 Collection on lease of the agricultural land, farm and forest land

and amending some laws (hereinafter as Law on lease of agricultural land) has

been especially adopted as an independent legal document for the land lease

purpose, performing as a special legislation (lex specialis) towards the Civil Code.

Law on lease of agricultural land regulates the agricultural land lease in two

different situations:

 land lease for agricultural purposes where the law maker assumes the

“short-term, disposable and occasional lease of smaller and consistent

areas;”

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;

 land lease for agricultural purposes inconducting a business, assuming

the land use for agricultural production where substantial expenditures

for land maintenance and restoration, soil fertility increase, plant

production effective technics, transport, manipulation, and for

constructions and infrastructure are required.

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Lease contract is the contract in which the lessor undertak es to leave

property to the lessee for consideration to use or to gain proceeds from the

property on a temporary basis (§ 663 of the Civil Code). Temporary nature and

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Unknown ow ner is either t he owner, whose name is known, but his place of residence or domicile

is not know n - the most, or t he owner is not known, for example because the land book in the

village was lost.

5

The explanatory memorandum to the Law No. 504/2003 Collection , p. 6-7.

6

The explanatory memorandum to the Law No. 504/2003 Collection, p. 5.

7

The explanatory memorandum to the Law No. 504/2003 Collection, p. 5.