Extraordinary repairs under contract

By entering into a lease agreement, mutual rights and duties arise between the parties, which are variously regulated depending on the party of reference and the object of performance.

In agrarian matters, although tenancy contracts of rustic land and its pertinent follow a specific regulation, the allocation of the burdens of intervention-ordinary or extraordinary-on the real estate, remains governed by the rules of the Civil Code (Articles 1575 et seq. of the Civil Code), unless expressly waived by the parties(see Pret. Rovereto, June 23, 1999).

Well defined, in fact, is the division of the burden of carrying out the different types of repairs when it comes to the landlord or the tenant.

Moreover, the combined provisions of Articles 1621 and 1577 of the Civil Code dictated, originally, with specific regard to the lease contract, are applicable to all lease contracts, and thus also to rural land leases.

During the validity of the contract, therefore, the landlord-regardless of the contractual qualification from which the relationship originates-will be required to carry out extraordinary repairs on the contracted property at his own expense. The tenant, on the other hand, will only have the burden of giving prompt notice to the landlord about the need to intervene on the thing with repairs of extraordinary administration(see Civil Cassation, Sec. III, May 26, 2005, No. 11194; Civil Cassation, Sec. III, March 3, 1995, No. 2464; Civil Cassation, Sec. III, August 18, 1988, No. 4965; Civil Cassation, Sec. III, May 6, 1988, No. 3348).

If the repairs in question are urgent or in the event that the landlord remains inactive, despite the tenant’s indication of the need for the works, the tenant himself may provide for the extraordinary interventions the property needs, anticipating the expenses, and giving immediate notice to the landlord from whom he may request subsequent reimbursement(see Civil Cassation, Sec. III, May 26, 2005, No. 11194; Civil Cassation, Sec. III, Jan. 25, 1991, No. 754).

In case of failure to give prior notice, the tenant will not be entitled to claim any reimbursement for expenses incurred(see Supreme Court of Cassation, Sec. III, Jan. 25, 1991, No. 754).

It is pointed out that extraordinary repairs and works-where due to the landlord, but carried out by the tenant within the above terms-cannot in any way be included in the scope of Article 16 of Law No. 16 of May 3, 1982. 203 having to do with improvements, additions and transformations of rustic funds, the nature of the interventions in question being different(see Cass. civ., Sec. III, April 18, 2013, No. 9459). And this is so even if the interventions have been authorized and agreed upon with the property.

The foregoing, would not pose particular problems where the parties acted by mutual agreement by each fulfilling their obligations: a. direct (landlord intervention) or b. indirect (tenant intervention and subsequent landlord reimbursement).

If, on the other hand, the landlord fails to fulfill his obligation, even under an agrarian lease, the landlord’s serious failure to fulfill his obligation to carry out major extraordinary maintenance works is not considered to be a fact that can legitimize the tenant’s failure to pay rent. One cannot “react” to the other contracting party’s default with one’s own default. This is because there is no correspondence between the obligation incumbent on the grantor to provide extraordinary repairs and the obligation to pay rent, and – as a result – the tenant cannot refuse to perform pending (simultaneous or otherwise) performance of the property, as he cannot validly avail himself of the principle set forth in Article 1460, Paragraph 1 of the Civil Code (so-called exception of non-performance) (cf. App. Genoa Sect. agrarian, May 31, 2007).

Even if the landlord defaults, in fact, the tenant’s failure to pay the rent would place the tenant in a state of unjustified default, potentially grounds for termination of the contract under Article 5 l. 203/82.

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo