You can proceed to eviction of a defaulting tenant in a house not up to standard, or without the certificate of usability? It is a widespread belief that a tenant who is not up to date with payments cannot be removed from the apartment if the property is not in the habitable conditions required by law. In common belief, if the premises do not have the minimum safety and stability characteristics required by law, the tenant could be entitled to not pay the rent. But is it really like that?
In reality, common beliefs often clash with the law. The owner of a non-compliant house is in fact entitled to proceed with the eviction against thedefaulting tenant, as established by the Supreme Court a few years ago. Although the situation is obviously complex, the advice is therefore to consult the Real Estate Delinquency Database before renting the house to third parties, so as to check the payment history of future tenants.
Can you rent a property without usability?
Before understanding whether eviction in a non-compliant house is a viable option, it is necessary to ask ourselves whether it is possible to rent a property without the certificate of usability. The answer, as is easy to imagine, is affirmative: you can open one lease for apartments that are not officially compliant, also because not all properties are subject to certification requirements.
As confirmed by the Council of State with the sentences 4774/2020 And 3715/2017the certificate of usability cannot be requested for properties built before the entry into force of Presidential Decree 380/2001 – therefore before 30 June 2003 – as long as they have not been involved in renovations or modifications.
Considering how there are numerous old houses in Italy, it is not surprising that many do not have a certificate of ability, however this lack does not affect the possibility of signing a rental contract. This is also specified by a sentence of the Court of Rome, 5867/2019, which explains that therental agreement it remains valid even in non-compliant homes, as long as the tenant is duly informed.
When you can evict the tenant in a non-compliant house
As mentioned at the beginning, it is common opinion that the tenant rented in a non-compliant house can refuse to pay rent – or, again, to reduce the monthly fee to your liking – by virtue of the inconveniences experienced. In reality, this is an erroneous belief, since the signed contract remains valid even in the absence of usability.
However, there must be full awareness on the part of the tenant and, for this reason, the agreement must be made explicit within the rental contract.
House not up to standard and rental contract
In order to proceed with the eviction due to non-paying tenant arrearsinside a non-compliant house, is first to check how the lease. In fact, we can find ourselves faced with two different situations:
- self the tenant is aware of the absence of usability for the property, and this characteristic has even been made explicit in the rental contract, the agreement is formally valid. The tenant will then be required to pay the rent and related expenses and, in the event of arrears, the owner will be able to proceed with the eviction;
- self the tenant was not informed of the lack of usability, and the contract does not specify this, can take action against the owner, even by stopping paying the rent as long as he abandons the property at the same time.
In theory, the uninformed tenant can also file a lawsuit against the owner, however he must vacate the apartment. The fact of remaining inside the rented house, in fact, could demonstrate that the property is able to guarantee the minimum services to be provided. civil home. The issue was also confirmed by the Supreme Court with a 2018 ruling, 15378, relating in the case in question to an eviction of premises for commercial use.
When the tenant can decide not to pay
In the previous paragraphs it was reiterated that the absence of the certificate of occupancy does not represent an obstacle either for the signing of a rental contract, provided the tenant is informed of it, or for an eviction procedure in the presence of a defaulting tenant. But when the latter can lawfully decide not to pay?
The reference is inarticle 1578 of the Civil Code: upon delivery of the rented house, if there are defects that appreciably reduce its suitability for the agreed use, the tenant can request the termination of the contract or the reduction of the rent agreed upon by him. It follows that:
- the request for termination of the contract or reduction of the rent must be made immediately, at delivery of the property;
- there must be a vice of gravity such as to prevent the tenant from using the property as agreed. In the case of a residential rental, the tenant must find himself unable to live in the premises.
Generally speaking, the property must be in a condition to hypothetically obtain the certificate of usability. In other words, it must be able to guarantee the housing function, as per the usage agreed between the parties. Consequently, if upon delivery of the apartment the tenant discovers serious compliance problems – for example, an electrical system that risks short-circuiting or gas pipes that are not suitable to avoid the risk of leaks – he can request the termination of the contract. For safety reasons, in fact, he would find himself unable to use the property.
On the contrary, if the defect is less serious – think of incorrectly insulated windows and doors – and the tenant decides to live in the property anyway, after some time he will not be able to spontaneously decide to reduce the rent or avoid paying it, for the immediate discomfort. In this case, the owner can lawfully proceed with the eviction.
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