Among the principal obligations payable by the landlord Art. 1575 cc imposes to ensure the tenant the peaceful enjoyment of good locatogli throughout the duration of the lease.

In this sense, the landlord is then obliged to defend even the conductor (only) from any disturbances caused by third parties who have a claim on the leased asset: while, under dell’1585 II c. CC (but has dispositive nature and therefore derogated) this guarantee is not its responsibility with regard to so-called harassment of fact and that the harassment of the third conductor not pretend, however, to have rights to the property.

Harassment of law occurs when a third decrease, jeopardize, affects or disrupts the quiet enjoyment of the leased property boast conductor because his own real or personal, in contrast to the situation or the right instead declared by the lessor at the conclusion of the contract, for example by challenging the power of the latter to freely dispose of the property.

Harassment of fact can instead define the illegal act of the third against the conductor without any claim concerning ownership and / or the right to the enjoyment of the leased asset, which acts by the tenant can and must defend himself.

Article. 1585 CC establishes this clear line through the obligation for the landlord to guarantee its lead only in relation to the harassment of third parties relating to the right on the leased asset; while, as mentioned, let it be the conductor on their own (in this sense has a self legitimacy to act) to having to defend itself against third parties who molest (case more frequently in today ‘communal life) without any legal claim but simply in fact.

The “ratio” of this discipline seems to be that of maintaining a balance between the two parties mutually binding, so that would appear to lean too costly to the landlord is also responsible for relations between the conductor and the third (usually neighbors) that fall in ‘ personal scope of the latter and which do not involve the lessor: it did not seem fair to expect the latter action that exceeds the event that third parties who attempt to limit the use of the property, have a claim on it.

Instead against harassment law it is well justified the assurance to lend the lessor: who must defend (guaranteeing the holder) the right over the good that he has leased from third parties that contest.

With regard to harassment in fact one of the statistically most frequent cases is that of infiltration from the apartment above.

HARASSMENT LAW

Instead of school example of harassment of law may be the case where a third party seeks to rely a right (real or personal) on the rented property as a right of way. In which case it will be up to the landlord to act with an action “negatoria servitutis” art. 949 CC to declare the non-existence of the right of the third and request the cessation of the disturbances and harassment.

In fact, the content of the guarantee of the lessor pursuant to art. 1585 CC consists in ‘obligation to intervene directly (also acting in court, if necessary) against the third that claims the rights to indemnify the tenant and to end its interference in the enjoyment of the leased asset.

But of course (“the harassment of law, for which it established the obligation to guarantee the lessor, occurs when a third – claiming rights on a leased property real or personal conflict with the benefits granted to the tenant of the rental relationship – fulfilled acts of exercise of the related claims involving the loss or impairment of the enjoyment of the conductor, with the result that) if harassment can not be referred to the positions agreed by the lessor on the rented property (as in this case where the landlord had not granted enjoyment even outside areas) but concerns other autonomous situations enjoyment of the same conductor, is poured into hypotheses different from that referred to ‘art. 1585 cc. “(Cass. 02/07/2006 n. 2531 in Arch. Loc. 2006, 405).

The most recent Supreme Court ruling on the subject – unpublished – is of 05/09/08, n. 11514, whose motivation is worth reading in full because comprehensive and clear in reiterating the difference between: 1) defects in the rented property; 2) harassment of law; 3) harassment of fact (which, as mentioned, legitimate – but not require – the conductor to act directly against the third).

“They constitute defects in the rented property, the effects of which all ‘art. 1578 CC, those which affect the structure of the material thing, altering the integrity so as to prevent or significantly reduce the enjoyment by destination contractual or legal; are configured instead as harassment of law, for which, pursuant to art. The 1585 ° C. CC, the landlord is required to ensure the conductor, those that take the form of third-party claims that encamp rights conflicting with the conductor, is challenging the power of disposal of the lessor, is claiming a right in rem or personal infirmi or detract from that of conductor; if, finally, that the third party does not advance claims of a legal nature but adversely, with his own unlawful conduct, damage to the enjoyment of the conductor, the harassment is done and the handler may take direct action against the third party pursuant to the II c. dell ‘art. 1585 CC “.

In this case the Supreme Court upheld the ruling of the Court of Appeal of Milan who had qualified as harassment actually electromagnetic interference caused by nearby radio and television stations that created problems to ‘film activity conducted by a conductor in a shed used to such use.

In this sense, the Court of Appeal had reversed the judgment of the Court of Milan (who had accepted the request of the tenant to the lessor by interpreting the interference as Defects per articles. 1578, c. 2 and art. 1581 cc) and thus it exonerated the lessor from the guarantee.

HARASSMENT OF FACT.

Possible actions THE DRIVER AGAINST THE TENANT.

Even in the case of harassment made ​​to the conductor they are always alternative remedies to its direct action against the third party, which can not necessarily be forced to do so. In fact the conductor retains the right to:

1) terminate the contract;

2) seeking compensation for damage to the lessor;

3) (but it is not clear) requiring the reduction of the fee.

Indeed, “even if it is true that the lessor pursuant to art. 1585 2 c., Cc is not required to ensure the conductor of harassment made by third parties should be stated that that provision governs the relationship between the landlord and the tenant, and that’s freedom to take action against the third party is not a its obligation and therefore does not exclude recourse to other legal remedies.

Based on this assumption and also under the constitutional principle of economic freedom under Articles. 41 Const., 1321, 1322 and 1373 cc, and the fact that you can not force the driver to continue to hold good and to take legal action against third parties of a lease housing may terminate the relationship in case of serious disturbances caused by a third conductor and liable to affect the normal enjoyment of the property, then subsisting in this case the legitimacy of the landlord to take legal action against the third ex art 2043 cc “(Cass. 07/02/2006 n . 2530 in Arch. Loc. 2006, 532).

Even the Supreme Court 10/10/2003 n. 15170 (in Arch. Loc. 2004, 333) it stated “that parties to a lease housing it can resolve in the face of serious harassment (consisted in the throws from neighbors buckets of water mixed with nauseating elements evacuated from dog) caused to the conductor that affect the normal enjoyment of the property. “.

“Forcing the conductor nevertheless continue to hold good and to take legal action against the third party is clearly contrary to the regulatory framework.”

HARASSMENT OF FACT

Possible actions THE CONDUCTOR

DIRECTLY AGAINST THIRD PARTIES.

On the subject the judgment of the Supreme Court most known and quoted (eg. In Foro It, 1996, 1238 and Jur. It ,. 1997 958 note with Matilde Salvucci) is n. 1411 22.2.1996 which overturned the previous judicial interpretation according to which the remedies at the conductor against the third assumption was that the good he had been delivered and that consequently (if that is impossible to obtain enjoyment because occupied by third for any reason), he could only act against the lessor for its failure to ‘obligation of delivery. On the assumption that its autonomous action against the third postulate detention (and thus they have been delivered) good: since he is not, otherwise, be classified either as conductor.

The singular case decided by the Supreme Court cited was introduced by Mr Fortunato (in name but not in fact) M. who had turned to the 25/10/1988 Magistrate Nola since although formally assignee of accommodation IACP, not He had managed to enter it and found it busy, by virtue of a decision of the Mayor of Nola, such as Carmine D’O. who had lost their homes in the earthquake of 1980.

It therefore opposed the D’O. the question of M. pleading – among other things – that the delivery of the goods (which in this case lacked) constitute an unfailing for the existence of the lease and hence the legal standing of the conductor: therefore could not act against him, the third occupant, because not yet become such through the delivery.

The Supreme Court rejected these exceptions and, radically changing the old case considered – because the lease is already upon conclusion – that (even if the conductor is not yet holder) Article. 1585 2 c., Cc “analogy applies to cases where the offense in the third, illegally occupying property leased, prevent the implementation of such a relationship. It follows that the operator can act directly against the offender for the availability of good and / or damages.

Thus it remaining increasingly confirmed that no obligation is imposed on the lessor in case of harassment of which is in fact only the conductor that she must take charge on their own behalf against the third.

And that even in cases where such harassment actually affect directly and personally to the landlord about it (not only to damage caused to the furniture or furniture belonging to the holder but) also “to all that is the subject of the same enjoyment and thus to walls of the apartment by the landlord that were damaged by the unlawful act of the third “Cass. 24/11/05 n. 24805, unpublished, and CC 08/20/03 n. 12220 in Arch. Loc. 2003 55.

That is, in other words, that the tenant is entitled to act on its own against the third authors of the damage (eg leaks) caused to the property of the lessor accidents on ‘use and enjoyment of the “res rented”: with all the problems related is the possible transaction independently stipulated by the same on the quantum of damages of the landlord and to the fact that the same payments to be made directly to the place of the legitimate owner damaged.

As for the actions that can be used by the tenant against harassment in fact first he can act against the harmful emissions that exceed the normal tolerance as he was considered to be entitled to injunctive active (who would be reserved only for “landowner”) under a broad interpretation of art. 844 CC considers that the harassment actually art. 1585 II c., DC: Cass. 21/02/1994 n. 1653 (in Mass. Jur. It. 1994).

In that case, the Magistrate of Castrovillari – sub-office of Trebisacca – had accepted a request from a tenant to reduce art. 844 CC the sound of the ringing of bells and loudspeakers that broadcast religious services in the parish near his home.

The Supreme Court rejected the exception of the parish priest stating that “the protection of Article. 844 CC should be extended by analogy, pursuant to art. 12 preleggi, also the conductor because of the identity of the underlying reason for protection to both situations … and aims to end the intolerable entries from near the bottom.

The tenant can not instead to stop (within the year) harassment or disturbance caused thereby to the possession of the property (nor oppose the bare not violent or clandestine) precluded his having a possessory action maintenance recuperatoria art. 1170 cc.

In fact for the exercise of such action it requires the requirement of possession of real estate and the conductor it is only mere holder, even if qualified.

The conductor, but still within the year, may instead use (CC 04/29/2002 n. 6221 in Arch. Loc. 2002, 563, “the conductor holder qualified for the lessor’s account owner, has the right to protect its legal situation by the action of reintegration against the author of the examination “) of the other action, that of reinstatement ex art. 1168 CC against the counting violent and clandestine (challenged in the protection also for movable assets), from which it is excluded, as is known, only the cd

“Holder disinterested temporary” as it is the host (who, being unable to use, can be removed at any time from home, if unwelcome).

In this regard need to be addressed is the long history of the case of a conductor Roman against a neighbor who turns out to be emblematic not only of the impermissible remedies of maintenance by the tenant but also the litigation which, he complains, is coming to the higher courts disputes of an economic entity which does not justify them.

In the case he cited the conductor, with appeal dd. 10.04.1986 to Praetor of Rome, he asked the condemnation of his neighbor, the pruning of a cypress hedge that created a limitation of light and air in the garden of which he conducted.

Despite the appeal of the conductor, just to get the victory expenses (however, also requested by the close with the cross appeal) against the judgment of the magistrate of 1989 (which had rejected the demand and offset the costs of proceedings as the respondent had pruned the hedge during the proceedings at first instance), in 1991 the Court of Rome rejected both liens and compensated between the parties the costs of the second degree, reiterating that the action that had been given by the conductor to get the Pruning is qualificava which maintenance of ownership: for which he, as a conductor, in fact was not entitled.

Then appeal to the Supreme Court the conductor (again only for expenses) to support instead of being legitimized art. 1585 2 ° c., DC to his question of pruning (and not by way of action instead of maintenance, so mistakenly understood the legal characterization of his action by the first two Judges) the Supreme Court has upheld the complaint and in Judgment n. 939 of 01.26.1995 (in Arch. Loc. 1995, 450) has further postponed to another section of the Court of Rome: of course – nine years after the appeal to the Magistrate and 8 from pruning occurred – only to decide as to the costs now the three levels of courts.

It remains to think that in the meantime, in those eight years, the hedge is also grown back ….

Compare De Tilla: “The landlord is not required to ensure that the harassment of third parties”. In Real Estate and Law n. 7/06.