Are rental blocks and constraints still acceptable?
The Constitutional Court had already said no 37 years ago… The intervention of Corrado Sforza Fogliani
The Tribunal of Trieste raised the question of the constitutionality of the blocking of release executions, sending the same for examination by the Council. The question is raised in relation to arts. 3 (equality of citizens before the law), 24 (possibility for everyone to take legal action), 42 (recognition of private property), 47 (protection of savings), 77 (issuing of decrees by the Government) and 117, paragraph 1 (legislative power). In particular, the constitutionality of art. 103, paragraph 6 of Legislative Decree 17 March 2020, n. 18, as converted and modified, “with which – writes Dr. David Di Paoli Paulovich , judge of the pending execution and interested in the case – the <<suspension>> of the execution of the << property release measures >> ”was ordered, as well as art. 13, paragraph thirteenth, of Legislative Decree 31 December 2020, n. 183, as converted, "both in the part in which – the Execution Judge always writes – suspends the release measures also for situations unrelated to the health emergency such as situations of arrears relating to the << non-payment of the fee on due dates >> and that they occurred before the outbreak of the pandemic, both in the part in which, by providing ipso jure the suspension of the property release orders, it prevents the Execution Judge from deliberating and evaluating, by comparing them, the distinct needs of the owner compared to those of the occupier for the purpose of deciding whether to order the suspension ". Dr. Paulovich also ordered the transmission of the order "without delay" to the President of the Council of Ministers, the President of the Chamber of Deputies and the President of the Senate.
The order of the Court of Trieste is particularly elaborate and complete, both in its normative references and in its conceptual and doctrinal elaboration.
Apart from the doubt about the lack of the conditions of necessity and urgency required, it is noted that "the suspension of releases for arrears pre-existing to the pandemic and the aggravation of the owner's position cannot be justified and it is clearly unreasonable" should not suffer the repercussions of the pandemic in the same way, or even more, compared to the occupier ”. Faced with the illegal occupation of the property, "we do not understand the reason – it is always said in the ordinance – why the restoration of the violated legality should not prevail". "Failure to take into account the respective concrete situations of the owner and the illegal occupant – underlines the judge – is no longer constitutionally tolerable". The measure ordered must not be able to turn – the Court continues – "into an illegitimate case of expropriation in a substantial sense without compensation, with penalization of a << legitimate investment >>" even instead to be incentivized "when it is – according to the constitutional provision – the use of savings in the real estate sector ".
Lastly, the Court points out that the European Court of Human Rights has already had the opportunity to censor, since 2002, the delays and postponement of the execution of the release of real estate in Italy and that "it therefore appears illegitimate to order by law the delayed postponement of the execution of judicial measures for the release of properties (also) for situations unrelated to the health emergency and without taking into account the legitimate rights of the owner even if affected by the emergency itself ".
Also in domestic law, moreover (sentence 3/4/1984, pres. Elia), the Constitutional Court, in postponing the declaration of unconstitutionality of rules for the extension of leases, had pointed out that it believed that those rules would be "the 'last and definitive link in the gradual implementation of the new leasing regulations (Law 392/78), without allowing for a further similar legislative intervention ”. And this, 37 years ago!
This is a machine translation from Italian language of a post published on Start Magazine at the URL https://www.startmag.it/mondo/affitti/ on Sat, 08 May 2021 05:48:15 +0000.