A much-debated question on the subject of leases for residential use is whether the tenant is obliged to repaint the walls before returning the property at the end of the lease.
Let us look at the rules governing this case and the interpretation given by case law.
THE LEGAL FRAMEWORK
Leases for residential use are governed by Law 431/1998, entitled "Discipline of leases and the release of property for residential use", as well as by the rules of the Civil Code (art. 1573 et seq.).
The lease agreement represents the legal source of the relationship between landlord and tenant and of the rights and obligations arising from the agreement.
The contractual autonomy of the parties implies they may establish a regulation that differs from that provided for in the regulations in force, as long as it is consistent with the mandatory rules laid down to protect particular interests.
Since the law does not represent an immutable reality but lives thanks to its application, the reconstruction of the institutions is never confined to the dictates of the law and it is necessary to consider the interpretation that jurisprudence has given it over time.
THE TENANT'S OBLIGATIONS
In addition to paying the rent within the agreed terms, the tenant must use the property with the care of a good family man, according to the use agreed in the contract or that which can be inferred from the circumstances.
In order to maintain the property in good rental condition, the tenant shall bear the costs of minor maintenance.
On the other hand, the tenant is only liable for the costs of ordinary maintenance of movable things and in the absence of a contrary agreement.
Necessary repairs are the responsibility of the landlord.
What are the tenant's obligations at the end of the tenancy?
RETURN OF THE LEASED PROPERTY
According to the provisions of Article 1590 of the Civil Code, "The tenant must return the property to the landlord in the same condition in which he received it, in accordance with the description given by the parties, except for deterioration or consumption resulting from the use of the property in accordance with the contract.
If no description has been given, it is presumed (simple presumption) that the tenant has received the thing in a good state of repair.
The tenant shall not be liable for loss or deterioration due to old age (e.g. rust on railings).
In order to understand where the boundary of the tenant's liability lies, the criteria of normal deterioration of use related to the enjoyment of the thing in accordance with its normal purpose.
It is, for example, physiological that after a few years the walls are no longer intact and signs of paintings and furniture are visible.
All this is part of the deterioration linked to the use of the thing in accordance with the contract.
JURISPRUDENCE
How has jurisprudence interpreted the principle expressed in Article 1590 of the Civil Code?
Constant case law of the Court of Cassation (see, most recently, sentence 29329/2019), has excluded the tenant's obligation to repaint the walls at the end of the lease.
This obligation does not exist even if the tenant has expressly accepted it by signing the contract.
The clause would be null and void (and therefore ineffective) as it would confer an unfair advantage on the landlord by shifting the costs of ordinary maintenance onto the tenant.
The only consideration that the landlord may legitimately claim from the contract is, in fact, the rent.
The Court expressly refers to the principle expressed by the "Agreements contrary to the law", set forth in Article 79, Law 392/1978 (repealed by Article 14(4) of Law 431/1998).
Despite the fact that the rule is no longer in force (although limited to residential leases), Article 13(1) of Law 431/1998, also entitled "Agreements contrary to the law", emphasises the concept already expressed by Article 79, Law 392/1978, confirming the approach whereby it is not permitted to alter the contractual balance of the lease relationship to the detriment of the tenant.
HELPFUL ADVICE
When a lease is about to be signed, it is always advisable to draw up a report, accompanied by photographic documentation, attesting to the actual state of the premises.
This step is useful in several respects:
a) it makes it possible to detect any hidden defects;
b) it reinforces the tenant's declaration that he accepts the leased property in its current state and that it is fit for the agreed use;
c) assists the landlord in detecting any damage when the property is released.
If the parties wish to change the contractual arrangement outlined by law, it is always a good idea to make sure that the differing clause does not violate a mandatory rule designed to protect the contractual balance.
Since the landlord may improperly withhold the deposit in order to charge it to the painting costs, it should be specified in the lease that the tenant is not obliged to repaint the walls in the event of normal deterioration in use.
