Communion and lease

In the agrarian sphere, it is common practice to enter into ultra-nine-year leases, even lasting fifteen years under the Agricultural Law, without this type of agreement losing its effectiveness and relevance to third parties.

Law 203 of May 3, 1982, in fact, expressly provides in Article 41 that “Ultra-nine-year agrarian contracts, including ongoing contracts, even if verbal or untranscribed, are valid and have effect even with respect to third parties.”

What on a first reading appears clear and peaceful has, however, been the subject of numerous pronouncements, for example, in the case of a lease contract entered into by only one of the co-owners of the fund for its entirety. On this point, the Supreme Court had repeatedly clarified that a lease contract of the minimum legal term (fifteen years, pursuant to Article 1 of Law No. 203 of 1982) entered into, albeit verbally, by only one of the co-owners, who has the availability, arises validly and – in fact – performs its contractual effects, even if the lessor has acted in violation of the limits of the powers of administration granted to him under Articles 1105 and 1108 of the Civil Code. In any case, this is without prejudice to the right to damages against the co-owner-landlord, if his or her activity has harmed the interests of the communion/co-ownership itself(see Cass. civ., Sec. III, Jan. 13, 2009, No. 483).

Article 41 of the Agrarian Law is, therefore, a derogation from the regulations set forth in Articles 1350 no. 8 and 2643 no. 8 of the Civil Code, according to which all ultra-nine-year real estate leases (and thus theoretically also agricultural leases) must be made under penalty of nullity by public deed or private writing. For the sake of completeness, however, it should be noted that the rules of Article 41 do not derogate from the provisions of Article 2923 of the Civil Code and Article 560 of the Code of Civil Procedure, with the result that, in the event of attachment of the property subject to the agrarian relationship, the ultra-nine-year contract will be enforceable against the adjudicator only if it bears a date certain prior to the attachment, and where not transcribed, only within the limits of a nine-year period from the beginning of the lease (cf. Cass. civ. Sect. III, May 18, 2015, no. 10136)

However, in a very recent order, concerning an ultra-nine-year lease contract entered into in the head of a company (i.e., to a non-direct cultivator and drawn up in writing pursuant to and for the purposes of the combined provisions of Articles 3 l. no. 606/1966 and 1350 no. 8 c.c.) in the form of an assembly resolution approved by a relative majority, the Supreme Court ruled that what is provided for by Law 203/82 on agrarian contracts — on the subject of duration and form of the contract — is not established in derogation of Article 1108, paragraph 3, c.c, which expressly provides for the necessary consent of all participants for acts of alienation or establishment of rights in rem over the common fund as well as for leases lasting more than nine years (cf. Cass. civ. Sect. II Ordinance, Oct. 17, 2017, no. 24489).

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo