E ‘should immediately point out that the subject of this brief review is the legality of the provision of royalties in the years to increasingly agreed outset, with the signing of the lease and not the change in fees during the contract [1].
Well, just relatively institution into question, has had the opportunity to attend a revirement total in the Court of Legitimacy decisions.
As noted by the Court careful about [2] it has gone from a fully closed position (reiterated in Cass. Civ. 6896/1987 that “had in fact stated that the lease issue of municipal buildings used for non-use housing, the contractual clause concerning the preordained annual increase by canone- fixed or differentially, year by year, from the first after the conclusion of a legal term contract – was deemed unlawful in the light of the provision in the L . n. 392 of 1978, art. 32 (the original formulation) which […], tends to preserve an attenuated by the royalties block system “) to a gradual opening, the seeds of which are glimpse in judgment no. 8377/1992 which, while considering anything yet that stipulation, submitted provided the ability to legitimately use this instrument.
The clause reads that judgment, “ should be null and void, in accordance with art. 79 of the Act, because it tends to elude the benefit of the lessor, the limits laid down by the aforesaid provision of Article. 32, unless the increases are not connected sinallagmaticamente expansion of the consideration . ”
Since the mid-nineties, have thus followed many rulings, particularly by the Court nomophylactic, which confirmed the opinion and prevailing case law made that “clause that provides for the determination of the extent fees differentiated and growing by successive fractions of time during the transaction, or expected increases in relation to predetermined objective events (totally different and independent of the annual changes in the purchasing power of money), must be considered legitimate under Articles. 32 and 79 of the law on fair fee, unless resulting in a direct expedient to neutralize the effects of currency devaluation (see., Among many other, Cass., Nos. 6695/1987, 4474/1993, 5360/96, 10500/2006, 4210/2007, 17964/2007, 5349/2009, 11608/2010, 10834/2011) “ [3].
This jurisprudential trend was and is founded on the basic principle of free and peaceful determination of rent for assets Non-residential.
This reconstruction, reversing the substance of the words referred to Cass. Civ. 6896/1987, mentioned above, was exemplary reaffirmed the sentence n.4210 / 2007, by which was established the absolute freedom of the parties in the determination of the rent. Freedom that had only limited non-predetermination of increases or connecting those increases, implicitly or otherwise, direct or covert, to changes in the purchasing power of money [4].
If, in short, to the state, “ the initial stipulation of increasing fees is yes in principle valid, but still all’imprescindibile provided that it is not expected to play surreptitiously an update feature of the value of the rent be released from criteria and limits established by Law no. 392 of 1978, Art. 32, . “[5], must be ascertained in practice, what are the conditions that may be declared invalid pursuant to the combined provisions of Articles. 79 and 32 of Law 392/1978.
An item of interest, incidentally detected in the last-mentioned judgment, sometimes underestimated by commentators, it is derived from the literal as art. 32 above law.
That article, entitled “upgrade fee”, provides for the possibility to update the locatizio fee and providing for the limits.
E ‘has been rightly said, is allowed “the parties provide for the determination of the fee to differing degrees and rising in successive fractions of time during the relationship as long as the same prediction is not a ploy to circumvent the mandatory provision of which to Law 27 July 1978, n. 392, art. 32 with which the legislature has reserved the right to determine the manner and extent of the upgrade fee in relation to changes in the purchasing power of money, removing it from the availability of the parts . “[6]
The justification for a ban on introducing an indexing mechanism other than required by law is based both on general requirements, consistent programming relapse from changes in the purchasing power of money on current contracts, both on the perceived need to avoid that the landlord can take advantage of the structurally weaker contracting party to impose unfair automatic indexation mechanisms, split by a causal justification which is anchored to the concrete interests of the parties trim.
Such short progress: lawfulness of the agreed-called “ladder” provided in compliance with art. 32 l. cit.
Coming down from the quiet world of the principles to the bellicose field of concrete and the courtroom, we note, however, some fluctuations in relation to two issues of crucial importance for the resolution of disputes decisions: 1) the need for the fee to an increasing degree, as determined at the inception of the contract, both anchored to external factors which may indicate the intention of the parties; 2) the explanation mode (required?) For those items.
Albeit a minority, in fact, there is a jurisprudential trend, especially about which attaches excessive importance to the validity of increasing fees, explicit indication in the body of the lease of external factors justifying the choice of the parties.
Immediately freeing the golf misunderstandings, it must be said that the endorsement is certainly preferable in the contract reasons that have led landlord and tenant to diversify the amount of the fee during the relationship, but, however, is just as important not to look away from what is the limit (as discussed here) place to free bargaining: the prohibitions on abuse (or bypass, is the same) of the wording of Article. 32 l. 392/78 [7].
Accentuating balance synallagmatic or motivations at the basis of the decision to provide for an increase (or decrease) the gradual fee, would clearly be at odds with the basic principle, not in question, the “ free conventional determination of the fee < / em> Rental for buildings intended for non-residential use “[8].
The anchoring the canon “ladder” to various reasons (the execution of the works carried out by the tenant, rather than reasons of national crisis or company, to risalenza of the relationship or the novelty of it) determines the legality of ‘agreement, in short, because (and insofar as) express a different cause by the update of the fee to the power of money, doing assume, therefore, the actual stipulation of rental fees differentiated in time and not an upgrade in breach of ‘art. 32 cit.
This reconstruction is confirmed in numerous judgments of legitimacy and merit.
If the 19802 judgment of 08/28/2013, the Supreme Court asked the district court that appurasse, during the proceedings, although the differences in the amounts expected to increase “ by the parties were considered equivalent to the possible upcoming change (which would then well above, in their expectations, 20% of the total in just one year) the purchasing power of money and do not constitute, however, a difference such as to suggest that the two different canons had been to other diversified reason “, in a recently the same, confirming the judgment of merit under appeal, reaffirmed the legality of the determination of fees increasingly stressing that” the change in increase in rental rates, provided for the second year, third, fourth and fifth of the report, it did not translate into a violation of the Law no. 3982 of 1978, Art. 32, since it was predetermined variations and not anchored to the changed purchasing power of money either directly nor indirectly. Then an intention to evade excluded by reason of the fact that no increase was planned for the sixth year, and not even for a second six-year term of the lease, very broad time period, within which variations in the purchasing power of the currency would not could not affect “ [9].
In the first case, the absence in the lease any external reference which diversification in the years of rent, the Ermellini returned to the trial court so that a comparison was carried out in practice would be anchored between the increases provided for in the contract and those relating to ‘increase in the change in the purchasing power of money (or rather the possibility of the parties to consider the two equivalent variations), in the second, again in the absence of any external element, the legality of agreed finds its source from an examination of the increases themselves, which showed that the ‘intent of the parties was not to infringe Article. 32 l.392 / 78, but free to fix different fees for several years.
If, in short, the reasons that lead to decide a different determination of the rent over the years, the reference shall be considered not necessary where it becomes equally clear that with such determinations the parties have wanted to exercise their right is always advisable to make explicit in the contract free bargaining and not circumvent art. 32 cit.
This evaluation, the trial court competence, must be based on concrete and certainly taking into account also the changes established by the parties in comparison with the (presumed) of the variation of the power of money.
As stated by careful jurisprudence of merit, you can not, for example, be considered null and void, pursuant to articles. 79 and 32 l.392 / 78, where the increase of the fee, established outset in contract, providing for an increase so large that they can not certainly believe that he had as a circumvention of the provisions of Article purposes. 32 cited [10].
To conclude this brief intervention, it can be said, in a nutshell, that landlord and tenant have the full freedom to contract for the determination of the fee to differing degrees and rising for successive time frames, provided this is done with the signing of the lease agreement and contract compliance with art. 32 l. 392/1978. Than estimated in court through an examination of the specific case.
