TENLAW MEETINGTartu – Estonia

7-9 May 2015

Dr. Ranieri BianchiPh.D. Private Law - Attorney-at-Law

Team Leader: Prof. Elena BargelliDepartment of Political Sciences

University of Pisa, Italy

Fight to Irregular Tenancies and Protection of the Tenant:

the Italian Case

• Law no. 431/1998 - contractual freedom- rules to discover “black contracts” and real amount of rents

Art. 1 the written form is necessary in order to execute valid tenancy contracts

Art. 13, subs. 5 if the absence of the written form is due to the landlord:- rent cannot exceed the amount established for ‘assisted tenancies’;- right to have the difference refunded.Statutory conversion of the contract ‘contrast of interests’

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Art. 7 eviction from the rented dwelling can be enforced provided that some fiscal duties are duly executed (e.g. registration of the contract)

Const. Court 5.10.2001, no. 333 declaration of unconstitutionality: the judicial protection of a right cannot depend on the execution of a fiscal duty, which has no connection with the judicial procedure

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Art. 13, subs. 1 Any agreement indicating an amount of rent exceeding the amount indicated in the written and registered contract is null and voidA) prevention of simulation for fiscal purposes: the agreement is null and void if not registeredB) fiscal rules do not affect the validity of the agreement: protection of the tenant and prevention of any form of rent increase not decided by the parties at the beginning of the contract (Court Cass. 27.10.2003, no. 16089 confirmed by Const. Court 19.7.2004, no. 242)

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• Art. 1, subs. 346 Law no. 311/2004Tenancy contracts, or in any case contracts which give the faculty of enjoyment, regarding dwellings or portions of the same, in any way executed, are null and void, if they are not registered when this is required

Const. Court 5.12.2007, no. 420this provision doesn’t limit judicial protection but qualifies the fiscal rule as a mandatory rule, whose violation makes the contract null and void

Problem of tenant’s protection5

Art. 3, subs. 8 Leg. Decree no. 23/2011- “cedolare secca” regime- protection of the tenant- more deterrent effect

When a tenancy contract for a residential dwelling is not registered:a) the tenancy duration is established at four years from the moment of registration;b) the contract can be automatically renovated for further four years;c) the rent is fixed at three times cadastral rent.The rule is applicable also to:- registration of the contract indicating a lower amount of rent (partial simulation: art. 13, subs. 1)- registration of a free loan (commodatum) to hide a costly tenancy contract (total simulation) 6

• Critics:- only residential dwellings- excessive limitation of private autonomy- excessive limitation of property rights- unequal treatment of tenants and landlords- advantage for the tenant but no increase of revenues

Const. Court 14.3.2014, no. 50:declaration of unconstitutionality, but only for a procedural irregularitythe court expressly defined these provisions as ‘revolutionary’ under the point of view of civil law 7

ConclusionsIntroduction of civil law remedies for fiscal violations seems

to be an effective ideaNevertheless it is important that the legislator introduces a

statutory conversion of these agreementsIt is possible that a similar rule is not considered

unconstitutional as far as it pursues:- protection of the tenant- deterrent effect for the landlord

Nevertheless it is advisable to reconsider some limitations of landlord’s rights:- legal amount of rent- responsibility of the landlord- legal duration

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