Hungary

In the case of a lease, the landlord warrants that the object of the lease will be suitable for the use stipulated in the contract for the period defined therein and that it will comply with the provisions of contract law. Accordingly, the landlord has to maintain the quality of the property at the level agreed in the contract or, in the absence of such an agreement, in approximately the condition that the property was in when the contract was concluded.115 The tenant bears the cost of minor maintenance of the property and other expenses relating to the ordinary use of the property, including taxes. The tenant is obliged to inform the landlord should the need arise for works that are to be performed by the landlord. Moreover, the tenant must permit the landlord to carry out these works and take whatever measures necessary to mitigate losses. The tenant is liable for any loss resulting from failure to inform the landlord of any problems (Civil Code, § 427).116

The Law on Residential Lease provides that, unless otherwise agreed, the tenant is responsible for the cost of maintaining and renovating the paintwork, doors, windows and equipment of the residential property, while the landlord is responsible for the cost of replacing or substituting them (Civil Code, § 13(1)). If the work to be performed in the residential apartment is due to the renovation of the building or the failure of mechanical systems, the costs are to be covered by the landlord (Civil Code, § 14(4)). On the basis of the above rules, the conclusion can be drawn that in the case of a residential lease it is the task of the landlord to repair the defective heating system and the roof damaged in the storm. It is the tenant who has to repair the dilapidated fences and to paint the building if the paint ßakes off. Neither of them is obliged to replace the obsolescent central heating system.

In the case of an income-producing lease (lease for profit), including the lease of agricultural property, the tenant must bear the expenses that arise from repairs and renovations necessary for the maintenance of the property. Hence, it is the tenant who must repair the defective heating system, the dilapidated fences and the ßaked off paint if these situations emerge after the coming into existence of the lease, as these are repairs

115Gelle´rt, A Polga«ri To¬rve«nyko¬nyv magyara«zata, pp. 1539–42.

116The tenant may claim recovery of the necessary expenses devoted to the property. Reimbursement for other expenses can be claimed according to the rules of representation without mandate (negotiorum gestio).

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and renovations necessary for the maintenance of the property. The cost of extraordinary repairs and renovations are to be borne by the landlord. Thus the repair of the roof damaged in a storm is the task of the landlord. Neither of the parties is obliged to replace the obsolescent central heating system.

The usufructuary and the holder of a right of use are responsible for ordinary expenses and repairs in maintaining and using the property. Extraordinary repairs and expenses are the responsibility of the nude owner. The usufructuary and the usuary may effect extraordinary repairs if the owner does not respond to a request to do so. When the usufruct or use expires, the usufructuary or the holder of a right of use may claim reimbursement from the owner for his/her necessary expenses, less the decrease in the value of the property. If the value of the property has increased on account of the extraordinary repair, the usufructuary and the usuary will have a claim based on enrichment.

Accordingly, the usufructuary and the usuary have the duty to repair, replace or renew the defective central heating system, to repaint if the paint on the building ßakes off and repair the dilapidated fences on the farm since these amount to ordinary repairs necessary for the maintenance of the property. On the other hand, the replacement of the central heating system due to its becoming obsolescent and repairing the roof damaged in a storm are extraordinary repairs which are the responsibility of the nude owner. Should the owner fail to carry out these repairs when requested, the usufructuary and the usuary may do this and claim reimbursement of the expenses, less the decrease in the value of the property from the nude owner upon termination of the usufruct or use. The replacement of the central heating system because it becomes obsolescent (without being defective) is not necessary for the operation of the property, but it increases its utility. Accordingly, this expense is not necessary, but useful. The fate of useful expenses is not expressly regulated but can be worked out with reference to the fate of necessary expenses and a possible claim for enrichment (cf. Civil Code, §§ 98(1) and 361). Repairs necessitated by the fault of one of the parties are the responsibility of that party and the additional loss suffered by the non-timeous painting of the wall must be borne by the usufructuary or the usuary.

These default rules can only be changed where a usufruct or a right of use is established by means of an inter vivos agreement. The Civil Code, § 584(4) provides that the parties may determine the content of the contract and deviate from default provisions unless there is provision to the contrary (Civil Code, § 200(1)).

In the case of a loan for use, expenses related to the maintenance of the property are to be borne by the borrower. All other expenses he/she may have incurred in relation to the property are to be settled according to the rules of representation without mandate (negotiorum gestio) (Civil Code, § 584(4)). Accordingly, repairing the dilapidated fences, the defective heating system and painting the building where the paint flakes off are the task of the borrower. The law does not impose any further obligations on either of the parties to repair, replace or renew the property or its components.

Italy

The landlord is obliged to carry out all necessary repairs during the term of the lease, with the exception of minor maintenance for which the tenant is responsible (Civil Code, art. 1576). The tenant is obliged to give the landlord notice of any repairs which become necessary during the term of the lease. Where such repairs are urgent, provision is made for the tenant to undertake the repairs and to claim reimbursement of his/ her expenses (Civil Code, art. 1577). For urban leases, Civil Code, art. 1609 expressly states that minor maintenance repairs, which in terms of Civil Code, art. 1576 are the responsibility of the tenant, are repairs necessitated by deterioration through use and not those caused by decay (old age) or fortuitous events (events outside human control).117 The lease of income-producing property is subject to a different rule: Civil Code, art. 1621 provides that the landlord is bound to carry out any extraordinary repairs, while all other repairs are chargeable to the tenant.

Thus, if the fences of a farm (which is income-producing property) are dilapidated, the tenant is obliged to repair them. The position is the same if the central heating system becomes defective or if the paint on the building ßakes off. If the roof of the farm is damaged in a storm, the repair is chargeable to the landlord.

The answers are different for the lease of urban premises. While there is some debate on the criteria for distinguishing between the kinds of repairs, ‘minor repairs’ certainly do not include expensive repairs which cost more than a few months’ rent or repairs necessitated by old age (decay). Repairing the central heating system, and probably also

117Some other minor modifications in the regulation of the lease of urban premises have been introduced by Law of 27/07/1978, n. 392, art. 9.

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repainting the walls, will probably be considered repairs chargeable to the landlord. Repairing the roof is obviously the responsibility of the landlord. However, one must bear in mind that it is the tenant’s duty to observe the diligence of a good paterfamilias in using the property leased for the purposes specified in the contract or for purposes which can otherwise be presumed from the circumstances (Civil Code, art. 1587). Consequently, the tenant has a duty to repair any damage caused by his/ her own actions or negligence or resulting from abnormal use. If a wall is seriously damaged in consequence of non-timeous repainting, the tenant may be held responsible if he/she negligently omits to give notice to the landlord of the necessity of repairs. If the central heating system becomes obsolescent, replacement is an improvement rather than a repair, and neither the landlord nor the tenant is obliged to do anything.

The rules on maintenance and repairs are not mandatory, and the parties can deviate from them by agreement.

In the case of usufruct, the Italian Civil Code (Civil Code, art. 1004) provides that the expenses and obligations relating to the custody, management and maintenance of the thing are chargeable to the usufructuary. Repairing the fences or the central heating system and repainting the walls certainly belong to this category.118 According to the prevailing opinion, unless some serious damage may result from the usufructuary’s non-performance, the owner cannot enforce this duty during the usufruct: the usufructuary is only under an obligation to return the property in a state of good repair on termination of the usufruct.119

Extraordinary repairs are normally chargeable to the nude owner (Civil Code, art. 1005). If, however, they are caused by non-performance of the usufructuary’s obligations of ordinary maintenance, they will be chargeable to him/her (Civil Code, art. 1004). If the owner refuses to carry out repairs, or delays their execution without justifiable reason, the usufructuary can undertake the repairs and claim reimbursement on expiry of the usufruct (Civil Code, art. 1006). The same provisions apply where, due to deterioration or accident, a building forming a necessary accessory to the land subject to the usufruct is partially destroyed (Civil Code, art. 1007).

118According to Pugliese, ‘Usufrutto’, p. 515 the usufructuary must replaster the walls, repaint the doors and windows and paint the walls.

119See Caterina, I diritti, pp. 145 ff.

Civil Code, art. 1005 defines ‘extraordinary repairs’ as ‘repairs necessary to ensure the stability of walls and vaults, the replacement of beams, the renewal, in whole or substantial part, of roofs, ceilings, stairs, the banks of dams, water channels (aquaducts), and structural (load-bearing) or outer walls’. This enumeration is considered to be merely illustrative and thus the list is not exhaustive.120 Several (non-mutually exclusive) criteria have been proposed to help draw a distinction between ordinary and extraordinary repairs. Amongst others, these include the amount of expenses incurred in carrying out the repairs and whether or not the repair was necessitated by normal wear and tear. Extraordinary repairs are those that do not arise from normal wear and tear.

There is little doubt that if the roof is seriously damaged in a storm, the owner will be responsible for its repair. If a wall is seriously damaged as a consequence of failure by the usufructuary to perform his/her obligations of ordinary maintenance, the usufructuary will be responsible for its repair. If the central heating system becomes obsolescent, replacement constitutes an improvement rather than a repair, and neither the owner nor the usufructuary will be obliged to do anything.

The rules on maintenance and repairs are not mandatory. It is not entirely clear, however, whether a different regulation would be enforceable against someone different from the original parties. In general terms, where the damage is maliciously or negligently caused by one of the parties, the person who has caused the damage will be responsible for the repairs.

There is no case law and little literature on the duty to repair or renew in the case of a hereditary building lease (superÞcie). SuperÞcie usually involves the right to erect a new building and there is no duty to maintain the building in good repair in the absence of a contractual agreement. The holder of the building lease (superÞciario) can even erect the building and then destroy it. However, it is doubtful whether the same rules apply where the building transferred is already in existence. Some scholars emphasise the fact that the holder of a building lease (proprietario superÞciario) is an owner, and not the holder of a limited right. As ‘owner’, he/she should not have any duty to keep the building in a good state of repair nor have any right against the owner of the soil to carry out repairs.121 Others submit that at least part of the rules

120See Trib Venezia, 25/01/1962, in 1962 Giustizia Civile, vol. 1, p. 392; Pugliese, ‘Usufrutto’, p. 512.

121See e.g. Natoli, La proprieta`, p. 225.