The right to health is expressly stated in Article 32 of the Constitution and has the nature of a fundamental right. Can the rented property be affected by vices compromising the tenants' and their families' health?
A typical case is the presence in the property of high humidity making the environment unhealthy and unfit for habitation.
In its judgment 29329/2019, the Court of Cassation granted the tenant the right to terminate the lease due to the presence of humidity in the rented property.
Before examining the Court's decision, it is appropriate to make a premise about the regulation of defects in the lease.
THE LESSOR'S OBLIGATIONS (1575 Civil Code)
The lessor assumes the following obligations:
1) to deliver the leased property to the tenant in a good state of repair;
2) to keep it in a state to serve the agreed use;
3) to ensure its peaceful enjoyment during the tenancy.
WARRANTY FOR VICES (1578 Civil Code)
The lessor's liability is linked to the guarantee for vices in the rented thing.
A vice is a defect in the rented thing reducing its value or suitability for the agreed use. For the vice to have legal significance, it must be appreciable.
There are two types of vices:
a) manifest defects (recognised or recognisable);
b) hidden vices (more difficult to detect).
It’s not sure the vice exists at the time of delivery of the thing: when it comes into existence at a later time it is a 'supervening defect'.
The parties may agree to exclude or reduce the lessor's liability for vice except in the following cases:
a) the landlord has in bad faith concealed the existence of the defect (i.e. was aware of it but did not disclose it to the tenant);
b) the vice is such that it makes it impossible for the tenant to enjoy the property.
REMEDIES AVAILABLE TO THE TENANT
Knowledge or easy recognition of the vice excludes the landlord's liability.
Only in the case of hidden vices may the tenant alternatively request:
a) termination of the contract for non-performance;
b) a reduction of the rent.
The reduction of rent must be requested from the landlord: a self-reduction of rent by the tenant without prior agreement with the landlord is not considered legitimate.
The tenant is also entitled to damages unless the landlord has without fault been unaware of the vices at the time of delivery. The burden of proof lies with the lessor.
THINGS DANGEROUS TO HEALTH (Art. 1580 of the Civil Code)
In the case of vices involving a serious danger to the tenant and the tenant's family or employees' health, the tenant is entitled to terminate the contract even if the defects were known to him and regardless of any waiver.
It is not necessary for the defect to affect the entire leased property: it is sufficient if it affects a substantial part of it. Because of the express reference to "employees", the rule also applies to non-housing leases.
The Art. 1580 stands as a specification of the principle expressed on the subject of disclaimers of liability in the regulation of obligations (Art. 1229 cc): "Any agreement that excludes or limits in advance the liability of the debtor for fraud or serious negligence shall be null and void. Also null and void is any agreement in advance to exempt or limit liability in cases where the act of the debtor or his assistants constitutes a violation of obligations arising from rules of public order'.
It is clear that the fundamental right to health is not available and any agreement to harm is without effect. It is not clear in the case law whether the landlord is obliged to pay damages even if the tenant was aware of the defect and accepted it.
In its judgment 29329/2019, the Supreme Court held that humidity in the walls is to be counted among the vices attributable to Article 1580 of the Civil Code, which are not attributable to a breach of contract by the landlord but which alter the contractual balance insofar as they affect the suitability of the property for the agreed use.
The presence of the vice complained of justifies early termination, so that the tenant is not obliged to comply with the lease term.