3/2009 - Vil mand leje anden mands jord oc boe der paa
Tomtefeste i Norge fra middelalderen til ca. 1700
Av Olav A. Røssaak
Rettshistoriske studier nr. 20
Tomtefeste er et gammelt rettsfenomen i Norge. Som så mye annet gammelt norsk, er det ikke særnorsk, men har røtter i romerretten og nordeuropeisk middelalder. Det kom til Norge med de samme skip som brakte oss andre sorger og gleder – svartedauden så vel som reformasjonen. Skriftet tar ikke stilling til om tomtefeste er den rette måte å administrere fordelingen av byggetomter i samfunnet de neste sju hundre år, men å prøve å vise hva som var bakgrunnen for at systemet raskt fikk stor utbredelse i Norge, og har hatt det siden. Dette har en økonomisk side, men også en juridisk: Tomtefeste er på samme tid en enkel og funksjonell leieavtale og en kompleks juridisk konstruksjon som favner om både tingsretten og obligasjonsretten.
The Norwegian tomtefeste is a leasehold, a form of property tenure where one party leases the right to have his building on a given plot of land for a given length of time. It does for instance correspond to the Austrian Baurecht, and has elements of contract and property law intertwined. This way of making property, mainly urban property, at disposal for those who want to build on it, has been widespread in Norway through a very long time.
Tomtefeste was established in Norway in the late medieval period. The first lease contracts that has been preserved, is from the early fifteenth century, and shows that the institution has roots in the Late Roman contract of emphyteusis, through the Civil Law in the cities of Northern Europe. Urban tenure like this was common in the countries that had important trading links with Norway.
This influence, combined with the devastating downfall of the Norwegian economy after the Black Death and the plagues, wars and loss of independence that followed, made urban landowners wish to make their lands profitable by other means than the traditional, capital-intensive way of building houses for rent. Some landowners, in particular certain Church institutions, increased their landholdings in the towns as a better investment than farmland in the countryside. The leaseholders were soon people from most of the social spectre, from the owner of a humble shack, who had no means of buying land, to the great foreign merchants of the Hansa or Danish dignitaries.
There is little trace of tomtefeste in Norwegian law. In fact, the first law that entirely regulated tomtefeste is from 1975. There have been some regulations of aspects of this leasehold, and laws given to regulate rural tenure have had influence, in particular as rules to fill in what the leasehold contract might be silent about.
Still, the contracts have varied but little in their basics through the times. The four elements that formed the core of all medieval contracts, is still, with only minor additions, what is needed to make a contract. These are the parties (the owner and the leaseholder), the object (the building plot), the time (for ever or for life, for generations or a specified time) and the yearly rent.
Tomtefeste has been an urban phenomenon from the beginning, and from the time the population started to grow considerably in the sixteenth century, it was extended to the emerging new centres outside the medieval towns. In the rural areas, the laws of rural tenure was in force, and served both to some measure as a safeguard for the leaseholders as well as a legal framework to fall back upon. This slowly spread back to the older towns as well.
In a country that has, at least until very recent times, had more lack of capital than of place, tomtefeste has been an efficient way for landowners of making unproductive land productive without heavy investment, while leaseholders have been able to secure ground for their houses without having to find money to buy it. The lease has been a legal framework strong enough to give house builders the necessary certainty of being able to remain in occupation as an assured tenant for the time agreed.