The allowance for improvements made prior to the new rustic land law

The point of reference is once again Article 15 of the Agrarian Law, the last paragraph of which states verbatim, “the provisions of this article shall also apply to improvements provided for in the contract and agreed upon by the parties and in any case carried out before the entry into force of this law.”

The new element of the rule, is the phrase “however executed,” which subverts the Code’s discipline, which in the same law is expressly repealed with reference to Articles 1632, 1633, 1650, 1651 and 1653 of the Civil Code. The rules provided for the intervention of the court in advance of the implementation of the improvements in case of disagreement between the parties, and later, the granting of an indemnity to the tenant who had carried them out. In the light of the above, one immediately grasps the scope of that aside, which revalues all the improvements made and makes them part of that increase in the value of the fund, subsisting at the end of the lease relationship, which is the parameter to which reference must be made in assessing the indemnity to be paid.

Such an interpretation of the rule gives it evidently retroactive effect, in apparent conflict, therefore, with Article 11 Preliminary Provisions of the Civil Code. However, this is a fundamentally unfounded objection, even though it is widely used in practice in order to diminish or even nullify the innovative content of the rule itself.

Case law is unanimous in declaring that the principle of non-retroactivity of the law, while certainly a general principle of our legal system, has been elevated to the dignity of a constitutional precept in the field of criminal law alone. From this it follows that, outside the case at hand, the aforementioned principle constitutes a directive addressed to the legislature, which retains full power to derogate from it when it exceptionally deems it appropriate. The rule, therefore, appears to be entirely legitimate, so it can certainly be said that the increase in the value of the fund, subsisting at the end of the lease relationship, will have to take into account all improvements, however made.

This does not mean, in our opinion, that the scope of the said engraving should be considered unlimited and that certain principles established by case law cannot be used and applied.

Such an argument can be made, above all, on the subject of the statute of limitations, for which there is a valuable decision of the Cassation Papers (Cass. Oct. 15, 1968 No. 3299). The Supreme Court, dealing with a rental relationship with a tenant who is not a direct grower, preliminarily affirms the autonomy of the individual contracts that may have succeeded one another over time and, based on this assumption, declares that the statute of limitations for the right to compensation for improvements runs from the date on which each contractual relationship ceases. The judgment notes, in fact, that “at the expiration of the term of the contract, the tenant’s right to the enjoyment of the land ceases, and the landlord is free to rent it on different terms, which take into account its increased value as a result of improvements, so it is logical that at that time the tenant can claim compensation for the enrichment from which, since then, the landlord can begin to profit. And since such a situation arises both in the case where the fund is leased to others, subject to redelivery by the outgoing tenant, and also in the case where it is leased back to him under a new contract, it follows that the solution is the same in both cases: once the time fixed in the contract for the duration of the lease has expired, the tenant has the right to claim compensation for the improvements made in the same contract, whether he releases the land or remains there under another contract, by which a new lease relationship is begun.”

Returning to the retroactive scope of the above provision, it should, however, be pointed out that retroactivity cannot be such as to overcome the statute of limitations of the right: this would be contrary to the general principles of our legal system and to the very rationale of the rule, which only wants to revalue, for the purpose of compensation even those improvements that were not agreed upon between the parties or ordered by the court, as was provided for in the Civil Code. For the purpose of compensation and assessment of the increase in the value of the fund, therefore, those improvements for which the statute of limitations is declared to have expired should not be taken into account. It follows that this limit will also operate for the right to retention.

As for the statute of limitations, it will be the ordinary one and not, conversely, the five-year one stipulated in Art. 2948 n. 3 c.c., since the right to payment for improvements cannot be considered as consideration for the lease.

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo