APPORTIONMENT OF LIABILITY BETWEEN LESSOR AND LESSEE IN THE EVENT OF IMMISSIONS BEYOND THE THRESHOLD OF TOLERABILITY ORIGINATING FROM THE LEASED PROPERTY

The Italian Supreme Court, Third Division, has recently ruled on the liability of the lessor for immissions exceeding the threshold of normal tolerability, when produced by the lessee of the leased property.

In civil law, immissions are defined as propagations (such as smoke, heat and noise) emanating from a property. The relevant regulation, contained in Article 844 of the Italian Civil Code, is aimed at balancing two opposing interests: on the one hand, the needs of production, and on the other, the interests of the owner of the neighbouring property who suffers such immissions. The latter is in fact required to endure said propagations if they do not exceed the threshold of normal tolerability, which is assessed also with regard to the condition of the premises.

The Supreme Court, with judgment no. 23881/2025, returned to the long-standing issue of the apportionment of liability between the owner and the lessee of a property from which intolerable immissions originate.The case concerned the purchasers of an apartment located above a restaurant, who complained of nocturnal noise emanating from the premises. Indeed, although the seller had guaranteed at the time of purchase that the business was limited to take-away catering, on-site consumption was permitted, generating disturbance until dawn.

The purchasers therefore took action against both the restaurateur and the owner of the premises, but the Court of Asti upheld the claim only against the lessee, deemed solely responsible for the immissions in question.

The Court of Appeal confirmed the decision of the court of first instance, finding that no evidence had been provided regarding the foreseeability, on the part of the lessor, of the unlawful conduct of the restaurateur.The judgment of appeal was challenged by the purchasers who have risen three pleas in law, concerning - for what is relevant here - the breach of Articles 2043 and 2051 of the Italian Civil Code, as well as a misreading of the evidence concerning the liability of the lessor.

As to the identification of the party responsible for intolerable immissions originating from the leased property, the Supreme Court recalled the consistent case law, according to which the owner may be held liable under Article 2043 of the Italian Civil Code only if he contributed directly to the occurrence of the harmful event. For such contribution of the owner to be established, the Court affirmed, it is not sufficient that he failed formally to admonish the lessee to adopt measures aimed at preventing harm to third parties; it is rather required that he leased the property despite knowing of the production of intolerable immissions by the lessee (see Cass. Civ. 11125/2015, Cass. Civ. 4908/2018).

Therefore, the lessor is liable only when, at the time of the conclusion of the lease agreement, he could have foreseen – by exercising ordinary diligence - the production of excessive immissions by the lessee. The appellants argued accordingly that the evidence of such foreseeability had been adequately provided in the first instance proceedings, since not only the structures of the property were inadequate to attenuate the noise from the restaurant, but also because, at the time of the sale of the apartment located on the first floor, the company leasing the ground-floor premises had guaranteed that different and less noisy activity was conducted there.

In confirming the decision of the Court of Appeal, the Supreme Court argued that it was precisely from the breach committed by the lessee - who had been authorised to carry out a different activity - that the absence of liability of the lessor must be inferred.

With regard to the claim for damages under Article 2051 of the Italian Civil Code, the appellants argued that the lessor should be held liable for the immissions as custodian of the property, for not having prevented the lessee from causing them harm and for not having carried out structural modifications.The Supreme Court, however, referring to previous case law, held that the custody relationship is not relevant with respect to immissions.

Indeed, while it is true that liability for damage caused by a thing held in custody is apportioned between lessor and lessee, it is also true that the criterion of apportionment must necessarily take into account the parts of the property that each has in custody, since liability under Article 2051 of the Italian Civil Code relates to the party having legal and material control of the asset that gives rise to the harmful event (see Cass. Civ. 21788/2015, Cass. Civ. 10983/2023).

Moreover, it is not possible to prospect a form of custodianship over another’s unlawful activity, in relation to which only liability of the lessor may be established. Such liability must, however, be excluded in the present case.With this judgment, therefore, the Supreme Court, after reaffirming the criterion of apportionment of liability for immissions between owner and lessee, has provided an innovative and more specific interpretation of the custodianship arising from the existence of a lease agreement, excluding the possibility of a custody of another’s unlawful activity. The illegality of said activity must be infact endured solely and exclusively by the person who performed it.

Authors: Avv. Gianfilippo Chiricozzi e Ilaria Saraceno