Supervening constructability of the fund

During the term of an agricultural lease, it may happen that, as a result of the change in the zoning plan, some or all of the contracted land changes its zoning designation from being “agricultural” land to “building” land.

The Legislature provided for an ad hoc procedure and likewise regulated the consequences of such a zoning change in Article 50 of the Agrarian Law by stipulating that “For land which, in accordance with existing zoning instruments, is subject to use other than agricultural use, the owner or the person entitled who has obtained a concession under the law of January 28, 1977, no. 10 … [now building permit, pursuant to Article 10 of Presidential Decree June 6, 2001, no. 380 “Testo unico delle disposizioni legislative e regolamentari in materia edilizia”] … can obtain the release of the area necessary for the construction of the work granted, the related services and primary and secondary urbanization works.”

To this end, it will be the responsibility of the property-grantor to formally communicate the request for the release of the fund by sending a registered letter with return receipt to the tenant, in which all the details of the concession should also be included in order to enable the tenant himself to easily verify the veracity of the reason underlying the request for release. We specify, in fact, that the -actual- change of urban land use to “buildable” is a prerequisite for the validity of the release request.

On this point, the Supreme Court has had occasion to clarify that the right to release does not exist where the claim is based on the circumstance that a civil dwelling building has been constructed on the leased property without the consent of the grantor. In such a case, in fact, the different hypothesis of serious default of the tenant, which justifies the termination of the agrarian relationship under the different Article 5 l. 203/1982, for breach of the obligation of conservation and maintenance of the fund, would be integrated, with the further consequence that in order to enforce this ground for termination, the mandatory attempt at conciliation under Article 46 of the same law, as amended and supplemented, would have to be promoted in advance(see Cass. civ., Sec. III, March 9, 2006, no. 5107).

In the present case, on the other hand, there is no need for the attempt at conciliation under Article 46 of Law 203/82, as amended, since there is the fulfillment provided for in the third paragraph of Article 50 of the Agricultural Law, which in fact performs the same function as the aforementioned Article 46. In fact, it stipulates the obligation for the owner/lessor to send, at the same time as the tenant, a copy of the registered letter to the provincial agricultural inspectorate(now, as of January 1, 2016, Agriculture Sector under the jurisdiction of the Regions) so that the latter may summon the parties before it to make the necessary investigations and carry out – within thirty days of receipt of the communication from the inspectorate – the estimation of the crops in place on the land in question, as well as the land improvement works, additions and transformations of productive arrangements and rural buildings carried out in compliance with the provisions of Article 16, paragraph 1, of the same law.

The tenant will, therefore, be awarded an indemnity equal to the value of the crops in place and the works, as well as compensation, as provided for in Article 43 of the same law, provided that the tenant does not opt – alternatively – to be awarded the indemnities provided for in Article 17 law no. 865 of 1971, thus having to exclude the cumulability between the latter allowances and the other two disbursements considered above( see Cass. civ., Sec. III, June g, 2002, no. 8214).

Upon receipt of the payment of the compensation, the outgoing tenant shall arrange for the release “after thirty days from the execution of the payment of the amount provided for in the fifth paragraph or from the notification of the bank deposit of the amount in case of failure to collect” while, in case of failure to spontaneously release within the aforementioned period, “the claimant may obtain it by emergency measure pursuant to
Article 700 of the Code of Civil Procedure
, by submitting the relevant application within thirty days of the expiration of the deadline itself” (Article 50, paragraph 6, l. 203/82).

Given the parity of the functions performed by the fulfillments of Article 46, as amended, and Article 50, paragraphs 1 and 2, Law 203/82, in the case before us – given the correctness of theprocedure followed – in the event of the subsequent establishment of proceedings before the judicial authority for the release of the area necessary for the construction work subject to the permit, no objection of improcedibility of the application can be raised(cf. Supreme Court, December 2, 1992, No. 12858).

Despite the provision of fairly stringent deadlines for the quantification of indemnities and the subsequent deadline for the release of the land, it should be remembered that the construction permit is also subject to the time effectiveness and forfeiture deadlines set forth in Article 15 of Presidential Decree 380/2001 (as were likewise provided at the time of the building permit under l. 10/1977), thus making it necessary to coordinate the two rules, even more so when considering the possibility of having to take legal action for the release of the land, despite the timely payment of the indemnities provided to the tenant.

For this reason, in order to avoid a lack of protection to the detriment of the grantor, the Legislature provided that “The running of the terms fixed in the building permit shall remain suspended until the date of its actual issuance” (Article 50, paragraph 7, l.203/82).

In accordance with the rationale of encouraging the cultivation of land, averting any possibility of abandonment or failure to cultivate, the Agrarian Lawinserts an additional protection to the interests of the tenant, providing that in case of failure to carry out the work within the terms of the forfeiture of the building permit, the original contract shall be reinstated and the sums due as compensation under the fourth paragraph shall be retained by the tenant, concessionaire or sharecropper as damages.

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo