Lease and purchase of the funds by the co-heir under the industry regulations

As is well known, in agricultural matters, regulations in the field are, for the most part, aimed at the protection of the tenant farmer and the increase, modernization and rationalization of agricultural estates for better exploitation and simultaneous preservation of the productive and agronomic characteristics of the land itself.

This is the context of Article 49 l. 203/82, which, together with the aspect of preserving and protecting the continuity of the Farm, intersects the succession matter regulated by the Civil Code, providing – in the event of the death of the original owner – for the ex lege constitution of an agricultural tenancy relationship in favor of the heir who, possessing the qualification of principal entrepreneur under Article 12 of Law no. 9 May 1975, no. 153 or that of a direct cultivator, he or she appears to have carried on and continues to carry on an agricultural activity on the land that has fallen into probate.

According to the first paragraph of the aforementioned Article 49, in fact, the cultivating co-heir shall have – as tenant – “theright to continue in the conduct or cultivation of the same lands even for the portions included in the shares of the other co-heirs,” with the specific provision that “The tenancy relationship thus established between the co-heirs shall be governed by the rules of this law, commencing from the date of the opening of the succession.”

Taken individually, this provision does not give rise to any interpretative/application problems, just as equally clear is the provision in the third paragraph of the same article, which textually states that “Agrarian contracts are not dissolved by the death of the grantor” and in fact continue with the heirs of the de cuius until their natural expiration, unless terminated.

Reinforcing the rationale for the protection of the continuity of farms, provided for in the aforementioned article, is the provision in the first paragraph of Article 4 of l. Jan. 31, 1944 no. 97 (enacted for the protection of mountain funds and later extended to the entire national sphere by Legislative Decree 228/2010, Art. 8), by virtue of which the Legislature provided that, if the requirements set forth in the following paragraph 2 are met, “heirs considered to be tenants under Article 49 of Law No. 49 of May 3, 1982. 203, of the portions of rustic land included in the shares of the other co-heirs shall be entitled, upon the expiration of the lease relationship established by law, to the acquisition of ownership of the said portions, together with the stocks, appurtenances and rustic outbuildings“.

Putting the focus on the provision of the existence of a “lease relationship established by law,” the Supreme Court has, on several occasions, clarified that the right to the purchase of land, by the cultivating co-heir and put in place to the disadvantage of the other co-heirs, at the end of the lease (with respect to all the shares of the land conducted), is only entitled in the case where the lease with the heir was established under Article 49, Paragraph I, of Law No. 3 May 1982. 203 effective from the date of the opening of the succession and for the duration of fifteen years (see Cass. Civ., Sec. III, Aug. 20, 2015, No. 17006; Cass. Civ., Sec. III, Nov. 18, 2005, No. 24452).

The clarification is due because, where the coheir had entered into an agricultural lease agreement with the de cuius-when the latter was still alive-and even where the duration of the same had been set at fifteen years (Art. 1, l. 203/82), the application referred to in the first paragraph of Article 49 l. 203/82 would be precluded, and consequently the underlying rationale would be lost. In fact, although, in both cases the tenant holds the title of tenant under the agricultural regulations, in the former case the lease is subject to the provisions of the first paragraph of Art. 49 Agrarian Law and, since the interest in the continuation of the original farm prevails, in the absence of existing leases, it does not create problems for the application of Article 4 of l. 97/1994, as amended, to the expiration of the lease in favor of the co-heir.

On the contrary, the contract that arose in the “traditional” way, i.e., stipulated between two persons living at the time of the agreement, will not have a new effective date as of the opening of the succession, but will continue until its natural expiration-unless terminated-as provided for in Paragraph 3 of the same Article 49 l. 203/82, since the deceased owner will be replaced, ex lege, by his heirs.

All this being said, it is clarified that, even in the event of the exercise of the right to “purchase” the funds by the co-heir-tenant and to the disadvantage of the other co-heirs, the protection of all the other co-heirs and co-owners of the funds in question would in no case be undermined, since in the event of sale the right would arise in their hands to receive a consideration proportionate to the value of their respective shares of ownership.

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo