Intended use: in rental matters, the failure to issue permits is not an obstacle
In rental matterThe failure to issue permitsadministrative authorizations or licenses relating to the intended use of real estate — or rather their habitability — it’s not an obstacle to the valid establishment of a rental relationship, provided that there has been, by the tenant, concrete use of the property, while, in the event that the administrative provision necessary for the agreed intended use has been definitively denied, the tenant the right to request termination of the contract is recognized.
Furthermore, the possible non-conformity of the property leased to the building and urban planning discipline does not determine the unlawfulness of the object which has regard to theart. 1346 cc which does not refer to the property itself (and therefore to the abusive or otherwise legal condition of the leased property in relation to the current building and urban planning regulations), but to the performance, and therefore to the content of the deed of contractual autonomy which, in the rental relationship, must be identified, according to the legal scheme, in the concession of enjoyment of the property upon payment of the consideration, as well as, if the tenant is made aware of the state of the property, any failure to grant urban planning authorisations for its use it’s not an obstacle to the valid establishment of a rental relationship.
The above-mentioned ruling consolidates the prevailing jurisprudential position regarding the irrelevance of administrative-urban planning regulations for the enjoyment of the leased property for the purposes of configuring the lessor’s liability ex art. 1575 cc in the absence of a specific contractual guarantee agreement in this regard, it is the tenant’s responsibility to verify that the characteristics of the leased property are adequate for what is necessary for carrying out the activity he intends to carry out there, both from a technical and administrative perspective of the release of the necessary administrative authorisations.
In conclusion, It is advisable that the rental contracts include the necessary attention regarding the provisions on urban planning and building avoiding inserting clauses regarding the conformity of the property to such regulations, including the presence of the certificate of habitability, without having first verified their compliance, or specific obligations on the part of the lessor to provide for the release of the certificate of habitability or to guarantee the existence of the relevant requirements.
When in doubt, the driver must to expressly acknowledge to be aware of the lack of habitability and to knowingly accept the property in the state of fact and law in which it is found, having taken into account when agreeing the rent.
Obligations and responsibilities of the lessor: obtain the administrative authorizations necessary for the legitimate use of the leased property
In accordance with the‘art. 1575 cc, the lessor must deliver the rented property to the lessee good state of maintenance and maintain it in a condition to be used for the agreed purpose.
Given the above legal provisions, the burden of verifying that the characteristics of the property are adequate falls on the tenant to what is technically necessary for the performance of the activity that he intends to carry out there, as well as to the release of the administrative authorisations essential for the legitimate use of the leased property, therefore, excluding that it is the lessor’s responsibility to obtain such authorisations, if the tenant is unable to obtain them, no liability for non-fulfilment can be configured on the part of the owner, and this even when the denial of authorisation depends on the characteristics of the leased property; especially if the contract does not contain any clause of the lessor’s assumption of the guarantee that the property which is the object of the lease is suitable for the use that the lessee intends to make of it, nor the assumption of any commitment to adapt it, such as the necessary works, to the requirements requested by the legislation in force for the specific activity that the lessee intends to carry out.
It therefore falls on the driver the burden of verifying that the characteristics of the property are adequate to what is technically necessary for the performance of the activity that he intends to carry out therein, as well as the release of the necessary administrative authorisations; it follows that, where the tenant is unable to obtain such authorisations, no liability for non-fulfilment can be configured on the part of the lessor, and this even if the refusal depends on the characteristics of the leased property.
The particular destination of the property, such as to require that it be equipped with precise characteristics and that it obtain specific administrative licenses, becomes relevant, as a condition of effectiveness, as a prerequisite element or, finally, as the content of the obligation assumed by the lessor in the guarantee of peaceful enjoyment of the property in relation to the agreed use, only if it has been the object of a specific agreement, the mere statement, in the contract, that the lease is stipulated for a certain use and the attestation of the recognition of the suitability of the property by the lessee being not sufficient.
Therefore, the landlord is in default where it has not obtained – in the presence of a specific contractual obligation – the administrative authorisations or concessions that condition the regularity of the property from a building perspective (and, in particular, its habitability and its suitability for the exercise of a commercial activity), or when the intrinsic deficiencies or the specific characteristics of the leased property prevent the adoption of such acts and the exercise of the tenant’s activity in accordance with the agreed use.
