Termination of lease for serious breach of contract: relationship between conditions of claimability and content of dispute

In the event of serious default by the tenant-often due to non-payment of rent-the Legislature has provided, for the protection of the lessor, the latter’s right to apply in court for a declaration of contractual termination, by virtue of the provision of Article 5 l. 203/82, even in cases where the contract had been entered into as an exception under Article 45 of the same law.

On the other hand, for the purpose of the proper conduct of the termination proceedings, it is incumbent on the plaintiff to proceed in compliance with terms and provisions for the protection – this time – of the tenant.

In the same article 5, paragraph 3, l. 203/82, it is provided, in fact, as a condition for proceeding with the request for termination, the burden is placed on the grantor to formally put the tenant in default, by sending a registered letter with return receipt, specifying the charges made against the tenant so as to allow the tenant to rectify the defaults within three months of receipt of the notice, thus avoiding the institution of the lawsuit (see Supreme Court December 29, 1997, no. 13089).

If the debtor-tenant, within this period, makes full payment of the due amount, the conditions for the request for termination of the contract will be waived given the fact that the default has been remedied, and this despite the serious delay in payment.

As anticipated, the provision of a time limit in amnesty configures an exception in favor of the tenant to the principle of equal treatment of procedural parties, thus introducing an exception to the general rule in Article 1453 of the Civil Code, according to which once the aforementioned judicial proceeding has been instituted – merely declaratory of the already intervening termination – late performance is no longer permitted.

Alongside this fulfillment, but without replacing it as an autonomous provision having a different purpose and scope from the dispute, is the additional condition of procedural feasibility relating to the attempt at conciliation under Article 11 of Leg. 150/2011 and Article 46 l. 203/82, to be carried out before the Agriculture Sector of the competent Region, as a third party and extraneous to the facts capable of facilitating the composion – even by settlement – of the dispute.

On this point, in a ruling dated Sept. 19, 2014, the Court of Mantua, in opposition to the orientation set forth in the Supreme Court of Cassation’s Unified Sections ruling no. 633 of 1993 (which had composed the previous contrast), held that, precisely because of the different purpose, as well as the different scope in which the aforementioned rules are called upon to operate, the burdens set forth in Article 5 l. 203/82 can be considered fulfilled even if the conciliation attempt is made before the “grace period” for the amnesty of the default has expired.

Following this interpretation, for the purpose of the running of the time limit in Article 11 LD. n. 150/11 it will therefore not be necessary to wait for the expiration of the time limit for amnesty, albeit also inherent in the preliminary stage, referred to in Article 5 l. 203/82.

That being said, it should be noted that the relationship between the coexistence of the two conditions of procedurality has already been regulated by jurisprudence, which, has sanctioned that the notice of objection (art. 5) will necessarily have to precede the request for summons for the trial of the mandatory attempt at conciliation, given that the latter finds – inevitably – justification only in cases where the grantor’s written objection has not had any effect in the terms unforeseen ex lege (cf. Cass, U.S., Jan. 19, 1993, No. 633; Cass. , Dec. 29, 1997, No. 13089; Cass., Jan. 15, 2001, No. 503).

In the case before the Agrarian Section of the Court of Mantua, the Judicial Board decided to depart from the Supreme Court’s ruling on the grounds that adherence to a jurisprudential interpretation endorsing the thesis of the necessary – unsuccessful – expiration of the grace period before being able to request the attempt at conciliation would entail time and material consequences too burdensome for the grantor.

In the latter case, in fact, the grantor would be burdened not only with an unjustified – and unprotective – increase in procedural time by having to wait for as many as two consecutive terms to elapse before being able to institute judgment, to which would be added the time required for the actual proceedings, but also with the possible damages resulting from the defaulting tenant’s failure to spontaneously release the land.

Judicial proceedings for termination of the contract may, according to this guideline, only be instituted once the three-month period for amnesty has expired unsuccessfully and the conciliation attempt under Art. 46 l. 203/82 or it lapses sixty days from the sending of the registered letter referred to in the same article without reaching a settlement, even with a negative report.

On the other hand, the trial of the conciliation tanty subsequent to the receipt of the dispute by the grantor, but within the ninety-day period, would afford greater protection to the latter, while also not excluding the benefit that could accrue to both parties from the conciliatory settlement of any dispute, as a result of the parties’ constructive confrontation within a “protected” and “industry” environment.

The Mantua College has, likewise, had occasion to draw attention to the validity of a notice of objection which, although specific in its indication of the charges levied against the tenant and the consequent demands, indicates a time limit for the fulfillment of the debt that is less than the three months allowed by law.

The Supreme Court, with long-standing and well-established jurisprudence, also referred to by the College itself and placed as the basis for the decision taken on validity, has specified how the notice referred to in Article 5 l. 203/82 – provided it is complete with the additional requirements provided for by the regulations – need not necessarily contain a notice of payment within the terms provided by the legislature for amnesty. The tenant’s – discretionary – right to rectify his debt within the three-month period is, in fact, provided for by the law itself and the “grace period” cannot, therefore, be revoked or any reduction made by the grantor (see Supreme Court, Sec. III, Oct. 13, 1994, No. 8378).

As a practical matter, if the notice of default notice contained a request for amelioration of the delinquency within the hypothetical period of thirty days from its receipt and the tenant proceeded to pay the full amount within the three months from its receipt, the grounds for the request for termination of the contract would in any case be waived and the delinquency fully cured.

The non-modifiability of the grace period and the effective protection in favor of the tenant are confirmed, in fact, by what has been said above regarding the actionability of the demand for contractual termination, subject to the trial of the conciliation attempt, only once three months have elapsed since the receipt of the notice referred to in Art. 5 l. 203/82.

There would, in fact, be no reason to recognize the validity and effectiveness of the provision of a period for amnesty shorter than that provided for ex lege, when both guidelines regarding the time for the possible establishment of the conciliation attempt, provide that the judgment of contractual termination could in no case be instituted before the full three-month period for amnesty has elapsed.

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo