Rural building and tenant’s right of first refusal

The right of first refusal recognized in the head of the tenant farmer-director consists of the right to be preferred, over another person and on equal terms, in the constitution of a legal transaction and, in the agricultural sphere, concerns in most cases in disputes involving the sale of agricultural land only. However, in the case of lease of land and related buildings, the right of first refusal and redemption, if certain requirements are met, may also be legitimately exercised with respect to the latter.

The lease agreement in place between the parties is thus transformed from a mere title legitimizing the tenancy of other people’s land and buildings into a title for the purchase of the same in preference to third parties. The rationale of the rule is to favor the tenant who will thus be able to create a business compendium in ownership relative to plots of land, which he or she has well known and managed for some time.

The first requirement for the purpose of exercising the right of first refusal in the case of the purchase of the rural buildings covered by the lease agreement is that relating to the necessary use of the same for the conduct of the normal activity of the Farm, this in application of the bond of pertinency, the general definition of which can be derived from the provisions of Article 817 of the Civil Code, in which“appurtenances are defined asthose things intended in a lasting way to serve or adorn another thing.”

It will, then, be the burden of the direct cultivator tenant to provide proof of the existence of the aforementioned use of the buildings for carrying out the normal activity of the Farm. All, of course, for the purpose of the legitimate exercise of the right of first refusal on the building, pursuant to Article 8 of Law No. 8 of May 26, 1965. 590, as well as Article 7 of Law No. August 14, 1971. 817 (ref. Cass. 10.4.2015 no. 7183).

The lasting and continuous use of the building for the above purposes has the additional purpose of confirming that the building has always remained in the tenant’s possession under a valid lease agreement. This assumption was recently confirmed by a ruling of the Supreme Court, which rejected the claims made by a direct farmer who believed that he could exercise the right of first refusal on a rural building whose pertinential relationship with the land subject to conduction had been interrupted following the concession of the same to third parties for housing purposes and, therefore, effectively removing it from the purposes inherent in the Company’s activity (ref. Cass. 10.4.2015 no. 7183).

Furthermore, again with reference to the need for durability and continuity of the appurtenant bond between the building and the land, the Supreme Court has clarified that the right of first refusal on the buildings remains with the tenant even if he or she has exercised the right of first refusal on the sole purchase of the land originally covered by the lease, given the grantor’s decision to proceed with the disjoint sale of the land and the buildings (ref. Cass. 15.5.2009 no. 11314). Moreover, in the case referred to last, in order to subsequently exercise the right of first refusal on the buildings, it was necessary to prove that the tenant farmer had continued to use the buildings during the tenancy relationship. This was because the use ensured the permanence of the appurtenant bond between the said rural buildings and the rustic land previously acquired by the tenant (ref. Cass. 15.5.2009 no. 11314).

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo