Preemption and plurality of tenants

Pursuant to Article 8, Paragraph 9, Law May 26, 1965 no. 590 “in the case of the sale of a land cultivated by a plurality of tenants, sharecroppers or settlers, preemption can only be exercised by all of them jointly. If any has waived, preemption may be exercised jointly by the other tenants, sharecroppers or settlers provided that the land area does not exceed three times the total working capacity of their families.”

A simple reading of the operative part of Article 8, Paragraph 9, would seem to infer the necessity of the exercise of preemption by all preemption holders jointly — unless individual waivers are made — in the case of the sale of the fund in its entire and unitary extent, all in compliance with the essential quantitative requirement of the suitable working capacity of the right holders and their families.

The Supreme Court has, however, clarified that the above provision constitutes only the general principle of the joint exercise of the rights of pre-emption and redemption by the plurality of tenants of the same fund, as nothing precludes the exercise of the right with reference to separate portions of the same fund in cases where each of the plots conducted under lease constitutes an autonomous and independent entity.

Autonomy and independence, however, which must be such that it does not derive greater utility from proximity to the other plots, and with the further clarification that even the exercise of the right of first refusal on a single portion – having the characteristics just described – can also be put in place by the totality of the tenants and, therefore, not only by each individual tenant separately(see Cass. civ., Sec. III, Jan. 23, 2014, no. 1369).

Moreover, it should be noted that even the tenant farmer-director of a portion of the larger fund offered for sale is guaranteed the right of first refusal, provided that-as in the previous case-the entire compendium is divided into distinct and economically autonomous portions as well.

Accordingly, when the said fund is promised for sale to third parties together with other funds with the indication of a unit price and the prelazionary, interested in exercising the right over only the portion cultivated by him, fails to pay the price within a period of three months, starting from the thirtieth day after the owner is notified, unless otherwise agreed upon by the parties. Deadline so set by Article 8, sixth paragraph, of Law 590 of May 26, 1965.

The Court points out that in this specific circumstance there is no forfeiture on the part of the tenant of the right of preemption, and this is as a result of the failure to specify the unit price of the specific portion subject to preemption. In fact, unit pricing is an obligation placed on the owner. However, the Supreme Court makes it clear that the determination of the unit price may also take place in the eventual redemption judgment, without entailing any kind of forfeiture on the part of the pre-emption/redemptionist(see Cass. civ., Sec. III, March 7, 2014, no. 5414).

On this point, in fact, a“denuntiatio” indicating only the total price of the fund offered for sale has been declared irritable and of no effect, if the recipient of the same has a right of pre-emption only over a portion of the fund itself. The rationale of the decision underlies the circumstance that the failure to specify the price of the individual lot prevents the pre-emptionist from consciously assessing the advisability of exercising the right of pre-emption over the portion of the fund conducted by himself(see Cass. civ., Sec. III, Aug. 29, 2013, No. 19862).

Finally, as to procedural deadlines, regardless of the subject matter and the possible plurality of agents, the tenant’s declaration of intent to exercise preemption in the event of a sale, pursuant to the aforementioned Article 8 of l. 590 of 1965, must be received by the owner/seller within the usual 30-day period from the notification of the denuntiatio and this is so because the communication of the will to exercise the right constitutes a unilateral recetive act productive of effect only from the moment when it comes to the knowledge of the addressee, or from the moment when it can reasonably be considered known to the addressee inasmuch as it is proved to have been received at his address (cf. Cass. civ. sec. III, June 22, 2016, no. 12883).

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo