Prohibition of subletting, subleasing and subconcession of rustic funds

Article 21 of Law 203/82 on agrarian contracts establishes, unlike the rule in Article 1594 of the Civil Code, which relates to leases and empowers the landlord to sublease, the prohibition of contracts for subletting, subleasing and otherwise sub-granting rustic land.

As a reminder, violation of the aforementioned prohibition is punished by the landlord’s right to demand the nullity or termination of the contract and the consequent order to return the property. Restitution, however, which can only be enforced by the landlord within four months from the date he became aware of it.

The subtenant also has the right to intervene in the suit thus brought by the landlord and may ask to take over the contract entered into between landlord and tenant. In such a case, the takeover under Article 21 last paragraph will be limited to “three crop years from the expiration of the current one and in any case for a duration not exceeding the original contract.” If the landlord does not avail himself of this option and does not initiate court action, the subtenant or subtenant takes over the position of the tenant or subtenant.

The rationale of the rule is to punish landlord inaction by prioritizing the interest of the actual worker of the land.

The Supreme Court in the United Section in a ruling dated November 13, 1997, no. 11218 ruled on the relationship between subtenant and tenant and between the latter and the landlord, and specifically: on the prohibition of subletting for rustic land, stating that Article 21 grants the landlord two separate actions: that of termination of the lease for non-performance against the tenant and that of declaring the subletting or subgrant null and void, with a consequent claim for restitution of the land, to be brought against the subtenant.

Further, that both actions must be preceded by an attempt at conciliation due to the combined provisions of Articles 21 and 46 of Law No. 203/82, as amended by Article 11 of Leg. September 01, 2011 no. 150, while, on the other hand, there is no need for the termination action to be preceded by the challenge referred to in Paragraph 3 of Article 5 of Law No. 203/82, which regulates disputes for the case of serious non-performance.

It should be borne in mind that the landlord’s forfeiture is prevented by the filing, within the four-month period from the knowledge of the existence of the subletting, of the court action and not by the mere promotion of the conciliation attempt.

The Supreme Court in its October 12, 2010 ruling no. 2108 returned to the subject of subletting and after reiterating what the Supreme Court had ruled in the aforementioned United Sections ruling, it, likewise, ruled that it is not necessary for the applicability of the rule that the subletting contract be valid, being instead only necessary that a transfer of the enjoyment of the land from the tenant to another person who carries out cultivation there in his or her own interest has taken place. What must, however, be fully valid, according to the Court, is the contract between the landlord and the tenant, since in the absence of judicial action by the landlord within the four-month period in the same contract, the substitution and takeover ex lege of the subtenant to the tenant will take place.

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo