Экзамен зачет учебный год 2023 / Breccia, Tenancy Law Italy
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It is unclear whether this rule would apply to the scenario outlined in Q15. If so, T would probably be unable to off-set the monies paid against future rent instalments, but must instead bring court proceedings against L to have the court nullify the contractual amendment.
Question 16: Deposits
What are the basic rules on deposits?
Deposits are a form of pledge,43 according to which the tenant gives a sum of money to the landlord as a guarantee that he will perform his/her duty. The landlord must return the exact sum to T upon the termination of the tenancy contract, but he cannot acquire any additional legal interest as a result.44 The only legal mandatory limit on deposits is outlined in art. 11 L. 392/1978 which states that the sum of money given as a deposit cannot exceed three monthly rent payments.
Question 17: Utilities
What are the general rules on utilities? Which utilities may the landlord make the tenant pay by contractual stipulation? Is it legal to establish in the contract a monthly lump sum to cover certain or all utilities?
Art. 9 L. 392/1978 outlines a list of utilities which must be charged to tenants: these are, for instance, the maintenance of lifts, the supply of water, electricity, heating and expenses resulting from the need to paint the property. Generally, tenants are legally bound to pay for all common utilities. This is to strike a balance between the landlord and the tenant, who is compensated by the advantages derived from statute n. 392/1978.45
However, art. 9 L. 392/1978 is not mandatory and may be the subject of negotiation at the time of contracting, provided that the eventual outcome is equally or more favourable to the tenant (art. 79 L. n. 392/1978).46 As stressed above, art. 79 L. n. 392/1978 has been abrogated by art. 14 subs. 4 L. n. 431/1998, which has cancelled the only restriction to the validity of such an agreement. As such, a clause which establishes a monthly lump sum to cover certain or all utilities would be valid.
Set 4: Obligations of the Parties in the Performance of the Contract and Standard Terms
In our system there are two main groups of provisions concerning the control of standard terms:
a) the rules which have implemented the Directive on Unfair Terms in Consumer Contracts in 1996 (cf. art. 1469bis ff. cc) are restricted to contracts between consumers and commercial parties.
43G. Gabrielli/F. Padovini, (supra note 20), p. 434.
44G. Gabrielli/F. Padovini, (supra note 20), p. 435.
45Cass. civ., 19 November 1994, n. 9807, in [1995] Guida al Diritto, p. 65; Cass. civ., Sez.un., 30/03/1994, n. 3132, in [1995], Giust. Civ. I, p. 1347.
46Trib. Milano, 21 June 1993, in [1994], Gius, p. 206
They apply also to tenancy contracts, but only if concluded by these parties.47 They outline a role for consumer associations (art. 1469sexies cc provides that consumer associations may seek to have certain abusive clauses overturned, and prohibit their future use).
b)the older rules concerning standard terms were introduced by the civil code of 1942 (art. 1341
–1342 cc), which lists several abusive clauses. They apply to all contracts whether between consumers or commercial parties, and state that general standard terms are valid only if the weaker party is made aware of them or ought to have been aware of them. Moreover, the listed standard clauses do not have effect if they are not specifically undersigned by the weaker party. Therefore, if undersigned these clauses will bind both parties even if they are included in the list of abusive clauses.
Question 18: Control of Standard Terms
What kind of control exists for clauses contained in standard contracts used by a landlord acting in a non-commercial capacity? (presupposing that the national implementation legislation of the Unfair Terms Directive applies to commercial landlords)
Under EC law, whilst any tenancy contract (even among a consumer and a non-commercial party) may have a profit-making objective, the landlord must be a professional landlord who is earning his living by renting property, in order to qualify as a commercial landlord (see the general definition of ‘professional’ contractor stated by art. 1469bis cc). Of course, this evaluation is not based on abstractly defined criteria.
Question 19: Frequent Standard Terms
The terms of a standard contract used by L (acting in a non-commercial capacity) provide that:
a)The tenant must not withhold rent or off-set rent instalments against any alleged claims of her own, unless authorised to do so by court order.
Tenancy contracts require tenants to pay the rent and any other charges due under the agreement. A failure to pay rent is, therefore, a breach of contract. In the scenarios outlined, only one contracting party (the tenant) is prevented from raising objections, and, as such, this is abusive under the general rule of art. 1341 cc. Unless specifically undersigned by the tenant these terms can have no legal effect. If the contract is concluded between a consumer and a commercial party, this clause will be abusive under art. 1469 bis subs. 3 n. 3).
b) The cost of small reparations, up to 100E per annum, must be met by the tenant.
This clause would not be abusive, as it is not listed under art. 1341 cc. Moreover, art. 1609 cc requires the tenant to pay the cost of small reparations, therefore the present clause is in conformity with the law.
47 G. Gabrielli/F. Padovini, supra note 20, p. 259 et seq.
c) At the end of tenancy, the apartment has to be repainted by a professional painter at the expense of the tenant.
The covenant sub c) is not abusive, because it is not listed under art. 1341 cc. Moreover, art. 1609 cc requires the tenant to meet the cost of any repairs which may arise during the ‘normal’ use of the apartment. This would most probably be the case for this scenario (see infra, question 26).48
d) If the tenant becomes a member of a tenants’ association, the landlord has the right to give notice.
This clause has no effect unless undersigned by the tenant, as it allows only the landlord to evict. It would most likely be unlawful (art. 1343 cc), and discriminatory, and a violation of the constitutional fundamental freedom principle. Art. 18 of the Constitution affirms the fundamental freedom of citizens to join any association, whose purpose is lawful.
As outlined supra, Question 18, Introduction, art. 1469sexies cc allows consumer associations to promote consumers’ rights vis-à-vis abusive terms.
Moreover, the cited directive has been implemented by L. 30 July 1998, n. 281, which further entitles consumer associations to promote the rights of the consumers listed under art. 1 subs. 2.
Question 20: Changes to the Building by the Tenant
T is a tenant in a building with 4 floors and 10 apartments. He asks L for the permission to install a parabolic TV antenna on his balcony. L refuses the permission by alleging that otherwise, he would have to give the permission to every tenant, which would ruin the view of the house aesthetically. In addition, he argues that 15 TV programs are already accessible via the cable TV connection of the house, which should be more than sufficient to satisfy the tenant’s demand.
Variant 1: Assuming that no Turkish programs can be received through the existing cable TV connection, does it matter if T is a Turkish immigrant who does not speak the national language well?
There is no case law addressing this issue. T has the power to use the leasehold property in conformity with the purposes stated under the contract. If the parties have not expressly stated in the contract what is and is not permissible, then T would not need L's permission to install a parabolic TV antenna, unless the 'condominial' rules of the apartment expressly prohibited such an action.
48 There are no cases concerning re-painting of premises. The repair of frames, for example, is not considered to be a small reparation, and need not be paid by the tenant (Cass. civ., 18 October 1993, n. 6798 in [1994] Giust. Civ., I, p. 1359.
Variant 2
On his balcony, T exhibits a huge poster with the slogan "Peace in Palestine and Iraq". Can L force him to remove it?
T has the power to use the leasehold property in conformity with the terms of the contract, and, with legally mandatory rules. L could, therefore, not force him to remove the huge poster. Moreover, a contractual clause prohibiting T from displaying such a poster would probably be unlawful. However, such a problem has not been brought before the courts to date.
With regard to other possible changes to the building, there are cases concerning, for example, a change to an apartment in order to provide an elevator suitable for disabled persons.49
As regards the relationship between landlords and tenants, the controversial point has centred upon the cost considerations of changing the structure of a building.50
Question 21: The Landlord’s Right of Possession of the Keys
Does L have the right to keep one set of the keys of the apartment rented to T? Under which conditions is L allowed to enter the apartment without T’s previous permission? If these conditions are not fulfilled, does L commit a criminal offence when entering the apartment without T’s previous permission?
Again no case law exists on this issue, however, L probably does have a right to possess one set of keys. L is not allowed to enter T's apartment without his/her prior permission, and would commit a criminal offence if he/she were to do so. In such a scenario, T would probably be entitled to sue L for a "violation of his/her possession" relying upon art. 1168 cc. Again, no case law exists in order to satisfactorily address this issue.
Exceptional circumstances in which L may be entitled to enter T's apartment, without T's permission may include, for example: if L must repair the building, and T refuses to allow him/her to enter. The legal basis for such an action would be L's property right, which obliges L, as the owner, to maintain the building in a suitable condition, in order to allow the tenant to enjoy it (art. 1575 cc), and in order to prevent any harm to third persons (art. 2053 cc).
Question 22: The Landlord’s Liabilty for Personal Injury
As the stairs in the house are not well maintained and in a slippery state, C, T’s child, falls and breaks her leg. Is L liable, and if yes under which legal basis?
L is normally obliged to maintain the stairs, as this forms part of the structure of the building (see infra, question 26). Therefore, he/she is liable for any personal damages caused to C. As C is
49Pret. Roma, 15 May 1996, in [1996] Arch. Locazioni, p. 564, concerning the relationship between the owner of a dwelling and the rest of the owners.
50Pret. Busto Arsizio, 21 April 1997, in [199] Arch. Locazioni, p. 467.
not a party to the tenancy contract, L would be liable in tort. Art. 2043 cc (the general rule on liability in tort) would apply to this situation.
Under Italian law, the doctrine of “security obligations” applicable to third parties has been developed by the courts, outside of tenancy law. There are a number of celebrated cases concerning liability in medical cases51, where a surgeon has been declared contractually liable, even though the victim had concluded a contract with the hospital, and not with the individual surgeon. This doctrine has not met with unanimous approval.
Set 5: Breach of Contract
In examining the issue of breach of tenancy contracts, I will focus upon the special mandatory provisions which derogate from the general rules on contract law. Conversely, the general rules on contract law apply in cases of impossibility and delay (questions 23 and 25). Moreover, I will take into account the guarantees for vices’ discipline, which may be compared only with the sale’s regime (question 26).
As regard the non-fulfilment of tenants’ duties, and the subsequent resolution of the contract, the statute provides for three main rules, which operate to protect tenants. The majority opinion asserts that these rules concern only the housing regime.52
The special rules are the following:
1)Firstly, art. 5 L. 392/1978
2)Secondly, art. 55 L. 392/1978
3)The third special rule applies if the tenant uses the leased property for an unlawful purpose (e.g. where the leasing of property for a commercial purpose is transformed into a lease for housing). Under article 80, the landlord must bring proceedings within three months of the day in
which he first became aware of the property being used for a different purpose. This time limit is considered as a foreclosure (and not a prescription).53
Question 23: Destruction of the House after Conclusion of the Contract
a)L and T conclude a tenancy contract. Before T takes possession of the apartment, a fire for which neither party is responsible destroys it.
L is obliged to hand over possession of the apartment to T. If a fire for which neither party is liable destroys the property, it becomes impossible for L to perform. Therefore, according to the general rules on contracts, which do not transfer property rights, the lease is frustrated (art. 1463 c.c.).
b)Does it make a difference if the apartment is destroyed by fire after transfer of possession to the tenant?
51Cass., 22 January 1999 n. 589, in [1999] Foro It., I, 3332.
52Cass. 28 April 1999, n. 272 [1999] FI, 1774.
53G. Gabrielli/ F. Padovini, (supra note 20), p. 616.
The contract is frustrated whether the apartment is destroyed subsequent to the transfer of possession to the tenant or before; the only difference in this scenario concerns the issue of proof. As T must take good care of the apartment once he acquires possession, he (and not the landlord) must prove that the fire was accidental and did not occur as a result of his actions or omissions.54
c)Does it make a difference if the apartment has already been destroyed at the time of the conclusion of the contract without the parties’ knowledge?
c)If, the apartment was already destroyed at the time of the conclusion of the contract, the contract is invalid because of the inexistence of its object (see art. 1346 c.c.).
Question 24: “Double Contracts”
L concludes a tenancy contract with T1. Shortly after, he concludes another tenancy contract over the same apartment also with T2, who is not aware of the earlier contract concluded with T1. Equally unaware of the second contract concluded with T2, T1 then takes possession of the apartment. The two contracts are only discovered when T2 wants to take possession of the apartment as well. What are the legal consequences for both contracts and the rights of the parties?
The personal right of the tenant is subject to specific rules, which are different from the ones concerning property rights. In the case of double contracts, the former right takes priority over the subsequent contractual right, if T1 has taken possession of the apartment (art. 1380 c.c.). It is not necessary for T1 to have acted in good faith. Therefore, the contract of T2 has no effects against T1, even if it remains valid. Therefore, T1 may only seek damages against L.
If neither tenant has taken possession of the apartment, the first contract would take priority over the second if made by deed or if it has a fixed time entered in the agreement. If registration of the lease was required (necessary for tenancy contracts in excess of nine years) the first registered contract would prevail. This final rule is that applied to a 'double sale contract' (art. 2644 cc).
The case of the double tenancy contract, therefore, shows a possible ‘real’ effect of the personal right of the tenant.
Question 25: Delayed Completion
L is an investor and buys an apartment from a big building company. According to the contract, the apartment should be ready from 1/1/2003. However, the purchase contract contains a (lawful) clause according to which the builder is not responsible for delay unless caused by him. L rents the apartment to T from 17/1/2003 without any special arrangements in the case of delay. However, as the neighbour N challenges, though unsuccessfully in the end, the building permit granted by the competent authority to B in an administrative law
54G. Gabrielli/ F. Padovini, (supra note 20), p. 621
procedure, the apartment is not available until 1/1/2004. Has T any claims against L? Has L claims against N?
A solution to this question can be premised upon the general principles of the Italian law of obligations and contract law.
If the completion of an apartment becomes temporarily impossible, L will not be held liable unless at fault. T would therefore have no claim against L in this scenario, as the delay cannot be imputed to L. This solution is premised upon art. 1256 subs. 2 cc. Impossibility exempts a debtor from liability if it is due to an unavoidable accident, to force majeure, or to the act or omissions of a third party.
L has no claims against N, as N has not acted unlawfully.
Question 26: State and Characteristics of the House (Guarantees)
L rents an apartment to T. T wants to diminish the rent because
a)Stains of mildew have been found in some corners.
Variant 1: By letter, T asks L to renovate the walls affected by mildew within 2 weeks. As T does not reply, T has the repair done by a specialist and wants to off-set the costs from the monthly rent rates. Is this lawful?
Variant 2: T did not discover the mildew stains when inspecting the house before entering into the contact, even though these had already been present. Does this preclude her from claiming a rent reduction?
b)A noisy building site for a big road is opened by the city administration next to the apartment.
c)The tenants of the neighbouring apartment in the house have repeatedly and despite T’s complaints organised loud nightly parties from 11 p.m. to 5 am.
To the extent the landlord is held liable under a) - c): Could his liability have been lawfully excluded by a disclaimer clause contained in the contract?
First of all it is important to note that the Italian code provides for different guarantees according to the nature of the problem affecting the apartment. The code distinguishes between ‘vices’ and ‘failures’.
The former concern the structure of the apartment, and become relevant if they substantially diminish the possibility to use and enjoy the property. In such a case, the tenant may ask for the contract to be set aside or for a reduction in the rent (art. 1578 cc). T cannot ask L to renovate the apartment.55
'Failures' refer to damage caused to the apartment through 'wear-and-tear' and/or age. In such cases, the landlord must restore the property to its original state and must guarantee the necessary repairs will be carried out (art. 1575 n. 2 cc). Only minor repairs (i.e. damage caused by wear-and- tear) must be met by the tenant (art. 1609 subs. 2 cc: what constitutes minor repairs must be determined by agreement or local customs). These rules are, however, non-mandatory and may therefore be excluded by a clause in the contract.
55 G. Gabrielli/F. Padovini, (supra note 20), p. 248.
It is of course difficult to distinguish ‘vices’ and ‘failures’56, a task which falls to the courts.
a)Stains of mildew may not be considered 'vices', as they do not impact substantially upon the use of the apartment. As a consequence, T cannot ask for a reduction in the rent nor for the contract to be set aside. Stains of mildew may, however, be considered as ‘failures’ which arise as a result of the age of the property. As such, the removal of the stains would fall to the landlord, which further implies a serious renovation of the apartment.
Where stains of mildew do not cause structural problems, they would fall into the category
of 'small repairs', the cost of which would have to be met by T. Indeed, re-painting internal walls, for example, is normally adjudged to be a ‘small’ repair.57
Variant 1. It is lawful that T has the repair done by a specialist, but he may probably not off-set the costs against the monthly rent payments for the reason outlined in question 15.
Variant 2 . As a general rule, landlords will not be held accountable for any problems in the apartment which the tenant is aware of / has been made aware of when agreeing to the lease (art. 1578 cc). This therefore prevents tenants from attempting to rescind the contract or reduce the rent due.
If the particular problem poses a danger to T's health and safety, though he/she was aware of the problem, the contract may be set aside. Stains of mildew are not sufficiently grave for this rule to apply.
In scenarios b) and c), T is not entitled to a reduction in the rent.
According to art.1585 cc, landlords must guarantee that tenants enjoyment of their property is not disturbed by third persons (art. 1585 subs. 2). However, this is not the case under b) and c) which concern ‘material’ nuisances, and therefore do not fall under the guarantee of art. 1585 cc. In a situation that falls under the scope of art. 1585 cc, the landlord is not required to reduce T's rents, but must instead protect the tenant by bringing an action against the offending third party in order to stop the nuisance. T may bring an action directly against the neighbours (at least in case c), where the conduct of his/her neighbours is unlawful. Italian courts have recently adopted a broad interpretation of art. 844 cc (injunction against intolerable nuisances), concerning property rights. Tenants can therefore avail themselves of this remedy in order to end nuisance.58
Question 27: House to be used for Specific Purpose
L rents a big apartment to T under the assumption shared by both parties but not explicitly stipulated in the contract that some rooms will be used by T as a surgery. However, the local authorities deny the permission for the surgery to be opened in the studio for fire protection and zoning law reasons. What are T’s claims?
56G. Gabrielli/ F. Padovini, (supra note 20), p. 244.
57F. Lazzaro / M. Di Marzio, supra note 13, p. 720.
58Cass. 11 November 1992, n. 1233, in [1994] Foro it., I, 205.
When leased property cannot be used for the purpose intended by both parties (even if not expressly stipulated in the contract) because of the denial of a licence by public authorities, the contract is frustrated. Tenants cannot ask for changes to be made to the property in order for it to conform to the requirements of the authorities.59 Instead, the courts affirm that this circumstance must be considered as sufficient to frustrate the contract;60 unless the property is only partially affected, in which case T can claim for the reduction of the rent.
If T has no interest in the remainder of the apartment, he can instead request rescission.61
There are special rules applying to mixed ‘private-professional’ tenancy contracts which are subject to a minimum duration requirement (art. 27 L. n. 392/1978). and to legal renewal except where there are specific grounds for eviction (art. 28 L. n. 392/1978).
Set 6: The Relationship among the Tenant and Third Persons
The relationship between tenants and third parties is linked to the question of the ‘nature’ of tenancy rights. The majority opinion asserts that tenancy rights are 'obligatory'. They do, nonetheless, display some 'property law' characteristics:
-Firstly, tenancy contracts persist despite a change in ownership [emptio non tollit locatum: see supra, question 9, sub b)].
-Secondly, tenants can avail themselves of some property law remedies. For instance, as possessor they are entitled to claim against eviction (art. 1168 cc); and can seek an injunction in the case of nuisance. They may also bring proceedings for damages.
Question 28: Neighbour Relations
T and N are tenants of neighbouring apartments in the same house. How can T react if N continuously plays excessively loud music or constantly produces bad smells penetrating into T’s apartment?
T may bring a direct action against his/her neighbours in order to have the intolerable nuisances brought to an end (see supra, question 26).
It does not make a difference whether T is the tenant or the owner of the apartment. Moreover, it does not make a difference if T and N are tenants of the same landlord. Finally, there are no public law mechanisms to which the tenant may resort.
Question 29: Damages caused by Third Parties
T has rented a house from L. The house is damaged negligently by a lorry during construction work undertaken at a neighbour©s house, which causes repair costs of 10000 and entails T being unable to use two rooms for 2 weeks. The lorry has been driven by E, an
59G. Gabrielli/F. Padovini, (supra note 20), p. 627.
60Cass. 2000, n. 1203.
61G. Gabrielli/F. Padovini, (supra note 20), p. 638 et seq.
employee of the building company B. Does T have claims against the building company B or the neighbour N who commissioned the building company?
If the building company or the neighbour are at fault, then T has a claim against both tortfeasors, according to the general rule of art. 2043 cc.62 The violation of the tenant's personal right may be considered as ‘unjust damage’ according to art. 2043 cc. This would mean that the right of the tenant is protected erga omnes by liability rules.
Moreover, the building company would be liable under tort law for the actions of its employee (the lorry driver). This is a strict liability rule (art. 2049 cc). The neighbour N who commissioned the building company may evade liability for the tort committed by the lorry driver, as the building company’s activity is normally autonomous.
Question 30: Unwelcome Help among Neighbours (Negotiorum Gestio).
When T has left his rented apartment for holidays, neighbour N notices a strong gas-like smell coming out of T’s door. Assuming that the gas pipe in T’s apartment has a leak and that a danger of explosion may be imminent, N breaks open the apartment door, thereby destroying his chisel worth 10 and causing a damage of 200 at the apartment door. After entering the apartment, N discovers, however, that the gas-like smell stems from the garbage bin which T had forgotten to empty before leaving. Has N a claim against T or vice-versa?
Negotiorum gestio is one of the sources of an obligation (art. 1173 cc). According to art. 2028 ff. cc, the requirements of negotiorum gestio are the following:63 - absentia domini (the owner must not be present); - ‘utiliter coeptum’ (that is, the activity of the third person must be founded on criteria of good administration)64; - the absence of a legal duty to help;65 - an awareness that the affair in question relates to another person. Moreover, the dominus must not have prohibited the activity of the third person.66
In the case outlined above, these requirements appear to be satisfied - except, perhaps, for the ‘utiliter coeptum’ requirement. The majority opinion asserts that this requirement is met if the court decides that the dominus, if present in the circumstances, would have performed the same activity as was performed67; finally, it is sufficient that the third party's aim was to prevent unnecessary damage to the property of the dominus.68
62G. Gabrielli/F. Padovini, (supra note 20), p. 302.
63For more detailed information see U. Breccia, La gestione di affari, in: Trattato diritto privato edited by P. Rescigno, 9, 1°, 1984, p. 704 et seq.
64L. Bigliazzi Geri/U. Breccia/F. D. Busnelli/U. Natoli, Diritto civile, 3, Obbligazioni e contratti, 1988, p. 802.
65Cass. civ., 29 March 2001, n.4623
66App. Roma, 09 December 1991, in [1992] Nuova Giur. Civ., I, p. 805.
67Cass. 30 September 1952, n. 2927, in [1953] Foro it., I, 1144.
68Trib. Torino, 01 December 1986 in [1987] Giur. di Merito, p. 1187.