Right of first refusal in case of new lease

The agrarian regulations, in addition to providing for the right of first refusal of the neighboring direct tenant and the tenant himself in case of sale of the neighboring/tenanted land – as respectively regulated – also protect the tenant in case of manifest intention of the grantor to enter into a new lease contract with third parties upon the expiration of the current lease.

Pursuant to Art. 4a of Law 203/82, introduced by Art. 5 of Legislative Decree 228/2001, the Estate is subject, again, to an obligation of denuntiatio, in a form similar to that provided for in the case of the sale of the fund, requiring it to “notify the tenant of the offers received, by registered letter with acknowledgment of receipt, at least ninety days before the deadline” offers that may consist-as experience shows-also in agreements in derogation under Art. 45 l. 203/82.

Paragraph two of the aforementioned Art. 4 bis l. 203/82 specifies, however, that this obligation is waived in the event that the lease relationship with the previous tenant is terminated due to serious default or termination of the tenant pursuant to Art. 5, as well as in the event that the tenant himself has formally communicated that he has no interest in renewing the lease.

In the latter cases the grantor/owner, may freely determine and lease the land to a third party of his or her exclusive choice.

The tenant, in case of interest in the renewal of the contract and – therefore – in the exercise of the right of first refusal – must communicate this intention to the grantor by sending a registered letter with return receipt, offering conditions equal to those communicated to him by the landlord with the denuntiatio.

In case of failure to comply with the denuntiatio obligation, the agrarian lease contract concluded with the third party will be affected by ineffectiveness (see Trib. Rimini, Sec. Sp. Agr., Nov. 14, 2002, No. 1309).

That being said, if the landowner/landlord leases the fund to a third party without denuntiatio to the previous tenant – in the manner and terms referred to in the first paragraph of the aforementioned Article 4 bis of l. 203/82 – within six months after the expiration of the contract, that is, despite having complied with the obligation to denuntiatio grants the fund on more favorable terms than those communicated to the tenant, the latter retains the right of first refusal to be exercised in the forms set forth in Paragraph 3 – that is, offering terms equal to those applied to the third party – within the term of one year from the expiration of the non-renewed contract (see Civil Cassation Sec. III, June 8, 2004, No. 10818).

If the right of first refusal is exercised in the terms just set forth, a new lease relationship will be established on the same terms as the contract concluded by the lessor with the third party who, therefore, will lose the right to cultivation, without prejudice to the right to claim against the lessor for damages.

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo