When a lease is for a fixed term (and for as long as the minimum statutory lease period has not elapsed, that is, three years from its conclusion for urban leases of primary residences and for every commercial lease), the lessor cannot demand the immediate departure of the lessee from the leased property (urban or commercial) before the expiry of the lease.
However, the lessor may “preventively” request that a court decision be issued which will be enforced as soon as the lease term has elapsed, if there are suspicions that the lessee will not vacate the leased property on the contractual expiry date.
Thus, the lessor is permitted to bring an action for delivery of the leased property even before the lapse of the statutory or contractual duration of the lease (since Article 48 para. 2 of Presidential Decree 34/1995 expressly refers to Article 69 of the Code of Civil Procedure in every case of delivery of leased property). Nevertheless, the delivery of the property will be ordered for a time after the expiry of the lease.
In examining the legality of such an action, the court applies the provision of Article 69 of the Code of Civil Procedure, provided that, based on the facts set out in the statement of claim, the above conditions are met. It is not necessary for the claimant to expressly invoke this provision.
Consequently, in the premature filing of an action for delivery of the leased property, it is not necessary to state explicitly that delivery is sought pursuant to Article 69 of the Code of Civil Procedure, that is, that the action is brought subject to a suspensive time limit (the lapse of the contractual or statutory term). From the facts set out in the statement of claim, or in any case through the application of the law ex officio by the court, the operation of the termination will be regulated and its consequences and effects will be determined in accordance with statutory provisions.
If, moreover, the action seeks delivery of the leased property at a time earlier than that which is determined as the expiry of the lease as described above, and that expiry time had not yet occurred at the time the action was brought, the action is lawful and admissible. The court will then order delivery of the leased property after the expiry of the lease.
An incorrect determination by the claimant lessor of the legally applicable expiry time of the lease, depending on the period during which the lessee or the latter’s predecessors in title have been in possession of the leased property, resulting in the pursuit of delivery at an earlier time than that prescribed by law, does not render the action vague or prematurely brought. This is because the claim for delivery of the leased property from a specific point in time, whether before or after the filing of the action, includes the lesser claim for delivery at a later point in time, at which, pursuant to Article 69 of the Code of Civil Procedure, the court will order the delivery of the leased property.
For the success of a prematurely brought action for delivery of the leased property, it is not necessary for the claimant to allege and prove that there is a well-founded fear that the lessee will not voluntarily deliver the leased property upon the expiry of the lease. This is because, in this case, subparagraph (f) of paragraph 1 of Article 69 of the Code of Civil Procedure does not apply, but rather subparagraph (a) of the same paragraph. The lessor’s legal interest, consisting in obtaining an enforceable title before the expiry of the lease so as to achieve delivery of the leased property upon its expiry, is self-evident.
Moreover, upon the lapse of the statutory duration of a lease, at which point the lease expires automatically as soon as that period passes, without anything further being required, such as notice of termination or formal demand (see M. Margaritis / Ant. Margaritis, Interpretation of the Civil Code, Articles 608–611, no. 5, p. 524), there can be no question of termination, which, if exercised, has the meaning of the lessor’s opposition to a renewal of the lease.
Therefore, even in cases where the lessor (with respect to old commercial leases) erroneously believes that after the lapse of the twelve-year duration the lease became of indefinite duration and proceeds to terminate it, whereas in fact it has been tacitly extended to sixteen years pursuant to Article 61(d) of Presidential Decree 34/1995 due to the lessor’s failure to exercise the claim for delivery of the leased property within the nine-month period following its expiry, such termination constitutes a declaration of intent that the lessor does not wish the continuation of the lease after the lapse of the sixteen years in the context of renewal. Delivery of the leased property by the lessee to the lessor will then be ordered upon the expiry of the lease.
This is because the greater claim, namely the lessor’s claim for delivery of the leased property due to the dissolution of an indefinite-term lease by termination, includes the lesser claim, which is the delivery of the leased property as a consequence of the expiry of the lease due to the lapse of the contractual, statutory, or any period of mandatory extension of the lease.
