Subletting: landlord forfeiture and subtenant takeover

The prohibition of subletting, subleasing and in any case subgranting of land enshrined in Article 21 of Law 203/82 on agrarian contracts, as the Supreme Court has repeatedly clarified, is not intended to protect a subjective right of the grantor with regard to the obligation of normal and rational cultivation of the land, but rather the different purpose of protecting–privileging–the interests of the actual worker of the land, so as to counteract all forms of intermediation and exploitation of agricultural labor (see, among many, Cass. Civ, Sec. III, Ord., May 31, 2018, no. 13791; Cass., Sec. III, April 20, 1995, no. 4479; Cass., Sec. III, March 8, 1991, no. 2471).

Hence the provision for the subtenant or subgrantor to take over in the same legal condition as the tenant or subgrantor, in the event that the landlord remains inert in the face of the violation of the aforementioned prohibition and/or in any case where the manifestation of the landlord’s dissent has occurred after four months have elapsed since the landlord became aware of the intervening subletting or subgranting (ex Article 21, paragraph 2, l. 203/82): the concrete need for stability and clarity of agrarian relations prevails here (see Cass. Civ., Sec. III, Ord., May 31, 2018, No. 13791; Cass. Civ., S.U., Nov. 13, 1997, No. 11218; Cass. Civ., Sec. III, March 24, 1986, No. 2058).

It should be pointed out that, in concrete terms, if the grantor has not acted within the terms of the law to have the subtenancy declared null and void, the subtenant succeeds ex lege to the same legal position as its predecessor with retroactive effect, that is, to the date of the conclusion of the main contract and as if the same had been entered into by the grantor and the subtenant from the outset.

Therefore, in the event that the grantor institutes the suit by means of an appeal aimed at the declaration of the nullity of the sublease agreement against the sublessee or sublicensee, in the absence of the time requirement set forth in the aforementioned second paragraph of Article 21, the respondent/respondent may oppose the suit by merely raising the objection – which cannot be detected ex officio – of the forfeiture incurred by the landlord due to his own inaction, without the need, moreover, for any further formalities, since in that case he has already taken over the contract ex lege.

If, however, the subtenant also intends to proceed, in the course of the same suit, to obtain a proper determination of his or her takeover of the contract-not limiting himself or herself, therefore, to the mere contrast of the counterparty’s claim-he or she will have to bring a new claim by means of a counterclaim, that is, an independent action aimed at obtaining a measure favorable to himself or herself and unfavorable to the counterparty, expanding the thema decidendum originally proposed by the grantor.

It should be clarified that following the filing of the counterclaim, the position of the original grantor/claimant changes with respect to the subject matter of the new claim: it will hold the position of respondent with respect to the counterclaim.

With its statement of appearance, therefore, in order to guarantee the counterparty’s right of defense, the sub-lessee or sub-concessionaire-now plaintiff in counterclaim-as well as punctually conducting its own defenses regarding the main claim, shall conduct counterclaim by concurrently requesting the Judge to set a new hearing for discussion, so as to allow the counterparty to conduct defenses against the new counterclaim. New application with respect to which the compulsory attempt at conciliation pursuant to Article 46 Law May 3, 1982 no. 203, as amended by Article 11 of Leg. September 1, 2011 no. 150 on pain of proposition (see Cass. Civ., Sec. III, Ord., May 31, 2018, No. 13791).

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo