Agrarian lease concluded with the usufructuary

Although a lease is generally entered into between the property and the tenant, our law provides that the usufructuary can also enter into valid and effective leases that-if certain requirements are met-can continue even after the termination of the usufruct.

The right of usufruct-whether it has its source in the law or in the will of man-allows the usufructuary to enjoy, throughout the life of the usufructuary, the thing granted but with the obligation to respect its economic purpose (Article 981 of the Civil Code).

The possibility for the usufructuary to lease the property derives from the provisions of Art. 984 Civil Code, which not only provides that he is entitled to the natural fruits produced by the property for the entire duration of his right, i.e., the fruits that are directly derived from it, but also the civil fruits, i.e., those that are received as consideration for the enjoyment of the thing by third parties. In light of the above, it seems clear that the rent received under a lease agreement can be qualified, fully, as “civil fruit.” Of course, in order to receive the rent, it will be necessary to have entered into a lease agreement.

Dealing, now, with agrarian contracts, it is necessary to point out that, with regard to the form in which the contract is stipulated, in the agricultural world it is a constant practice to stipulate leases orally and agree on the annual rent, except then to put in place the (written) fulfillments necessary for the purposes of the law: for the purpose, for example, of applying for and receiving EU aid.

As for the continuation of the contract entered into with the usufructuary after the termination of his or her right, it is the same law that provides (Article 999 of the Civil Code) – without exception – that in order to be effective, the contract must be entered into by public deed or by private deed having a certain date, since Law 203/82 has not even implicitly derogated from the conditions of form and substance provided for by the codictic norm of a special nature (ref. Cass., July 11, 1992, no. 8449; Cass., July 25, 2003, no. 11561).

Moreover, a confirmation of the possibility that the contract entered into by the usufructuary continues after the termination of the usufruct is given by a simple reading of Article 999 of the Civil Code, which implicitly confirms that “leases concluded by the usufructuary, in progress at the time of the termination of the usuf ruct […] continue for the stipulated duration, but not beyond the five-year period after the termination of the usufruct.”

The provision on the prolongation of the effectiveness of the contract could not, moreover, remain without regulation since one of the fundamental characteristics of usufruct, is its temporariness: it cannot last longer than the life of the usufructuary, it is not transmissible to heirs and, if it is a legal person, it cannot last beyond the term of 30 years.

Therefore, as already pointed out, as to the duration of the contract still in existence at the time of the termination of the usufruct, the first paragraph of the same Article 999 of the Civil Code provides, on the one hand, for the continuation of the contract for the stipulated duration and, alternatively, for its continuation, which, in any case, may not extend beyond five years from the termination of the usufruct.

The rationale of the aforementioned rule lies in the attempt to prevent the behavior of the usufructuary – taking into account precisely the temporary nature of the right granted – from prejudicing the reasons and rights of the owner once he or she has returned to full availability of the thing (ref. Cass., March 20, 2008, No. 7485). Such a provision would seem, at first glance, to contrast with the minimum duration of agrarian contracts provided for in the Agrarian Law (l. 203/82), which, in fact, stipulates that “leases to direct cultivators, single or associated, have a minimum duration of fifteen years” (Article 1) and that “agrarian contracts of more than nine years, including those in progress, even if verbal or not transcribed, are valid and have effect even with regard to third parties” (Article 41).

However, it should be kept in mind that the provision of contract validity of verbal or untranscribed contracts is a general rule and, therefore, derogated from the special provision of the Civil Code prescribing the form of the contract. And that the norms of the Agricultural Law, which provide for the duration of the contract, not being special norms do not have the force to derogate from the limitation of duration provided for in the first paragraph of Article 999 of the Civil Code (for all, Cass., Jan. 19, 20110 No. 693, conf . Cass., Apr. 1, 2010, No. 8000).

Summing up, without prejudice to the validity of the lease contract entered into by the usufructuary, on the one hand, the continuation of the contract beyond the termination of the usufruct and – consequently – its enforceability against the owner, will be possible – imperatively – only where the said contract has been entered into by public deed or by private deed having a certain date and, on the other hand, the effectiveness of the contract may not extend -even in the case of an agrarian contract- beyond five years from the termination of the usufruct, so as not to affect the rights of the property as soon as it reenters the availability of the property.

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo