The subleasing of rustic funds

A sublease agreement is a contract by which one party, called the subgrantor, agrees to let the other party, called the subtenant, enjoy a specific piece of land, for a given period and for a given fee, for the purpose of carrying out an agricultural activity. It should be kept in mind that the subgrantor is the party who, in turn, entered into a contract with the owner or first grantor. A lease in which the subgrantor is the party defined by law as the tenant.

In the leasing of rustic land, the replacement of the tenant without the landlord’s consent constitutes a breach of the obligation to faithfully execute the contract, so that it may well be assessed as a cause for termination of the contract. However, it is necessary for there to be a permanent detachment of the tenant from the property, resulting in the cessation of his actual and habitual presence on it and the performance of his labor, even if implemented in the form of farm management (ref. Civil Cassation, sec. III, 07-01-2002, No. 112). The aforementioned principle, moreover, was affirmed by the Supreme Court in a case in which it had been established by the trial court that there had been an unequivocal exchange between tenants of the respective funds, all, of course, in violation of Article 21 of Law 203/1982.

Furthermore, it should be borne in mind that in the field of agricultural contracts, when the tenant, in violation of the prohibition of the law, subleases part of the land he is in the enjoyment of to a third party, the application for termination of the contract, with respect to the portion remaining in his possession, proposed by the owner/tenant, can be made pursuant to Article 5 Law No. 203/82. And again, it is irrelevant that the landlord/tenant, within the four months from the date he or she became aware of the violation, did not deduce the default of the tenant who had subleased part of the fund to a third party despite the prohibition against establishing subletting or subconcession relationships. (ref. Civil Cassation, sec. III, 04-04-2001, no. 498)

Therefore, from the above and taking due consideration of the provision of the second paragraph of Article 21 of Law no. 203 of 1982, it can be inferred that, with reference to the time limit within which the landlord/tenant must react judicially against the sublease agreement, the failure of the landlord/tenant to comply with the time limit of four months from the date on which it became aware of the breach (for the purpose of declaring the sublease null and termination of the lease) is relevant only if there has been total subletting of the leased land. In contrast, in the case of a partial grant, the owner/concessionaire may take action only for the portion of the fund related to that sub-grant and not also for the remaining portion. (ref. Civil Cassation, sec. III, 22-11-1999, no. 12957)

It is worth mentioning that in cases of violation of the prohibition against subletting or subconcession of rustic land, Article 21 of Law No. 203, grants the landlord or grantor two separate actions: one is that against the tenant aimed at the termination of the lease resulting from the breach constituted by the violation of the prohibition of subletting, an action that is generically provided for in Article 5 of the Agricultural Law, but which finds its special discipline in the same Article 21 and which is subject to the prior attempt at conciliation referred to in Article 46 of the said Agricultural Law as well as to the time limit of four months from knowledge. The aforementioned forfeiture is, moreover, prevented by the filing, within the aforementioned four-month period, of the judicial action and not by the mere promotion of the attempt at conciliation; the other is that by which the declaration of the nullity of the sublease or sublease is sought with the consequent demand for the restitution of the fund. The latter action is brought against the subtenant and is also subject to the attempt at conciliation and the time limitation mentioned above (ref. Civil Cassation, United Sections, 13-11-1997, No. 11218).

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo