Rent, if the lease is null and void rents must be returned
The Supreme Court: compensation cannot be equal to the gain achievable under a valid contract
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Key points
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If the lease of a residential property unit is null and void due to lack of written form and lack of registration of the lease itself, the tenant is entitled to the restitution of the fees paid to the landlord, but the landlord is entitled to plead unjust enrichment of the tenant.
The landlord's claim for this unjustified enrichment of the tenant must, however, be liquidated within the limits of the pecuniary diminution suffered by the landlord as a result of the tenant's performance and not to the extent of the loss of profit that the landlord could have derived from the establishment of a valid contractual relationship.
This is the decision adopted by the Court of Cassation in its order 32696/2024 of 16 December, which partially annulled judgement 2102/2024 of the Court of Appeal of Rome: the court of second instance had denied thefull restitution of the rents paid, as requested by the tenant, on the grounds that this restitution would have caused the tenant unjustified enrichment.
Return of fees
.The Court of Cassation argues for its decision by observing that, whether in the case of nullity, annulment, termination or termination of a contract, or in the case of any other cause that causes a contractual bond to lapse, the action granted by law to obtain the restitution of what was paid in performance of the contract itself is the so-called repetition of objective undue payment.
This reasoning - according to the Supreme Court - also applies when the counter-performance (such as the payment of rent) is not repeatable. In fact, the lease falls within the group of contracts of continuous performance, where the requirement of respect for the balance between the performances is provided for by law only for the hypothesis of termination for non-performance, since Article 1458 of the Civil Code expressly exempts these contracts from the retroactive effect deriving from termination, with a rule that, precisely because of its exceptionality, is not susceptible of being extended to the hypothesis of the nullity of the contract.
