Right of retention

Article 20 of Law 203 of 1982 on the right of retention states: “The court, with regard to the economic conditions of the landlord, may order the payment in installments, within five years, of the indemnity referred to in the second paragraph of Article 17 (indemnity for improvements made to the land) to be paid by the landlord itself to the tenant, ordering, however, the provision of suitable security and the payment of legal interest in addition to compensation for damages arising from any monetary devaluation that occurred between the date of the establishment of the right and the date of payment of the sum due. If proof of the general existence of the works referred to in the first paragraph of Article 16 is provided in the judgment of cognition or in the execution process, the tenant shall be entitled to the retention of the property until his claim has been satisfied, unless the landlord gives suitable security to be determined by the court at the instance of the landlord“.

The said article has raised several questions, one of them being whether the right of retention is enforceable erga omnes or only against the original owner of the land. In the silence of the rule, two theories have arisen, one identifying the right of retention as a right in rem, the other, defining it as a personal right. However, both theses turn out to be unsatisfactory. Proponents of the realness of the right of retention seem to be correct in asserting that the right is enforceable against any third party making claims on the thing and that the right is therefore enforceable erga omnes. According to these authors, if this were not the case, the right of retention would be devoid of any practical effectiveness. However, to be fair; they have no argument to make against the objection that the person who has the right to retain the thing, until payment is made, cannot dispose of the retained thing, cannot act executively to realize its value, cannot satisfy his claim, nor, much less, is he the holder of the right of sequela.

In favor of the opposite theory is the claim that the right of retention, as a form of self-defense, rather than a right, is an exception, which necessarily can only be personal in nature. Even this argument, however, loses credibility when, taking its cue from the aforementioned assumption, it declares that the right of retention is not exercisable erga omnes, but only against the original owner, who is obliged to reimburse the expenses incurred by the person who retains the thing. Having reached this point, it seems appropriate to follow the view of those who, reconciling the two opposing theories, define the right of retention as a personal exception endowed with efficacy in rem and, as such, enforceable against third-party purchasers of the thing that turns out to be the subject of the retention. Lastly, it can be noted that with regard to the matter at hand, there is no doubt as to the erga omnes enforceability of the right of retention in favor of the tenant.

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo