Leasing of Bed Spaces to Non-EU Citizens: Commentary on Judgment No. 37623 of 2023

The recent judgment No. 37623 of July 14, 2023, by the Court of Cassation addresses a matter of great significance in the Italian legal landscape, concerning the leasing of bed spaces to non-EU citizens lacking a residence permit. This issue not only raises legal questions but also touches upon significant ethical and social aspects. The Court has established fundamental principles for the configuration of the crime, highlighting the necessity of specific intent and the notion of unjust profit.

The Regulatory Context

The crime in question is governed by Article 12, paragraph 5-bis, of Legislative Decree of July 25, 1998, No. 286, which deals with provisions regarding immigration. The regulation provides for sanctions for those who, with intent, profit from leasing properties to foreign citizens without a regular residence permit. The Court has clarified that for the crime to be established, it is essential to demonstrate that the balance of contractual performances is significantly altered in favor of the lessor.

The Concept of Unjust Profit

Leasing of bed spaces to non-EU citizens lacking a residence permit - Necessity of specific intent - Unjust profit - Notion - Factual circumstances. For the configuration of the offense provided for by art. 12, paragraph 5-bis, of Legislative Decree of July 25, 1998, No. 286, the aim of deriving unjust profit from the lease is required, which occurs when the balance of performances is significantly altered in favor of the property owner, exploiting the precarious condition of the irregular foreigner. (In its reasoning, the Court stated that such an alteration can be inferred from the existence of particularly burdensome contractual conditions compared to market values).

The Court highlighted that unjust profit occurs when the contractual conditions applied to non-EU citizens are considerably disadvantageous compared to market values. This implies that the lessor must not only intend to derive illicit profit but must also exploit the tenant's vulnerable situation. Contractual conditions and their comparison with market values therefore become crucial for the assessment of the crime.

Practical and Jurisprudential Implications

Judgment No. 37623 of 2023 contributes to outlining a clearer legal framework regarding the leasing of properties to irregular foreign citizens. Among the practical implications, we can include:

• The need for careful evaluation of lease contractual conditions.
• The responsibility of lessors in ensuring that rental practices comply with the law.
• Possible criminal sanctions for those who violate regulatory provisions.

Furthermore, the judgment is part of a consolidated jurisprudential context, referencing significant precedents that emphasize the importance of specific intent and unjust profit in similar factual circumstances.

Conclusions

Judgment No. 37623 by the Court of Cassation represents an important step in the fight against abusive leasing to the detriment of non-EU citizens lacking a residence permit. It clarifies the importance of specific intent and the need to avoid unjust profit, underscoring the obligation of lessors to comply with current regulations. It is essential for legal professionals and real estate operators to be aware of these provisions to ensure correct practices that respect everyone's rights.