26 September 2014
Practice Group:
Real Estate
DECREE “SBLOCCA ITALIA”: NEWS ON THE
MATTER OF LEASE
By Francesco Sanna, Partner and Anna Amprimo, Associate
Following its publication in the Official Gazette on September 13, 2014, the Law Decree September 12, 2014 no. 133 “Urgent actions for the opening of construction sites, the realization
of public infrastructures, the digital transformation of Italy, the simplification of bureaucratic
process, the emergency of the hydrogeological instability and the recovery of productive activities”, better known as “Decree Sblocca Italia”, has entered into force.
Among other news, the Decree Sblocca Italia has introduced significant amendments on the
matter of leases.
The liberalization of the lease sector
The provision that most affects operators in the leasing sector is undoubtedly article 18,
which introduces the liberalization of “major” commercial leases, intended—pursuant to the
definition provided by article 27 of the Law July 27, 1978 no. 392—for leases for commercial,
industrial and hospitality use. Said article 18, indeed, textually provides that “In article 79 of
the Law July 27, 1978 no. 392, after second paragraph, the following is inserted: By way of
derogation to the provision of the first paragraph, when entering into a lease agreement with
use destination other than residential use, including the leases for hospitality use, in respect
of which an annual rent higher of euro 150,000 is agreed, the parties will be entitled to agree
upon terms and conditions that derogate to the provisions of this law. The lease agreements
referred to in paragraph above shall be proven in writing”.
Said provision, therefore, does not limit to amend specific aspects of the Law 392/78, but
gives parties the right to entirely derogate such Law, any time an annual rent exceeding the
amount of euro 150,000 is agreed. By virtue of such provision, therefore, the parties will be
entitled to agree, by way of derogation to the provisions of the Law 392/78, terms and conditions that, if agreed before the coming into force of the Decree Sblocca Italia, would have
been void pursuant to the first paragraph of article 79 of the Law 392/78. In order to better
understand the “revolutionary” effect of article 18 in respect to the previous regulation, we
may recall that parties that intend to enter into a commercial lease with annual rent that exceeds the amount of euro 150,000 will be entitled to (i) agree upon a term of the agreement
even shorter than the minimum term provided by the Law 392/78, (ii) freely agree upon an
increase of the rent which is not connected only to monetary depreciation and, however (iii)
freely derogate to all those pivotal provisions that the Law 392/78—which is a Law aimed at
protecting the tenant as the weakest party to the contract—provides in favour of the tenant.
In particular, we refer to the regulations under articles 27, 34, 36, 38 and 39 of the Law
392/78, respectively on the matter of right of withdrawal, indemnity for loss of goodwill, sublease and assignment of the lease agreement, pre-emption right and release.
Even though, in the light of article 18’s coming into force, “major” commercial leases— with
annual rents exceeding euro 150,000, are potentially not subject tout court to the regulation
DECREE “SBLOCCA ITALIA”: NEWS ON THE MATTER OF LEASE
of the Law 392/78, such leases are not deprived at all of any regulation, since they continue
being subject to the provisions of the Italian civil code on the matter of leases (articles 1571–
1614) and, we deem—as a residual regulation—to the provision of the Law 392/78 itself, in
cases where parties do not agree differently. In respect of the regulation provided by the Italian civil code, however, the impossibility for the parties to derogate to the relevant provisions
is quite restricted and limited—in substance—to the maximum 30-year term provided by article 1573 that remains—de facto—the only real limit on the contractual autonomy of the parties, together with the requirement of the written form of the lease agreement, expressly required by article 18 of the Decree Sblocca Italia.
“Rent to buy”
Again, on the matter of lease, with the entering into force of the Decree Sblocca Italia, a specific regulation has been introduced on the matter of “rent to buy”, those agreements—other
than financial lease agreements—providing for the immediate granting of a real estate asset
with the right for the tenant to purchase said real estate asset within the term agreed between the parties, ascribing a portion of the rent to the sale price indicated under the lease
agreement. Pursuant to article 23, indeed, “rent to buy” agreements shall be registered (trascritti) pursuant to article 2645-bis of the Civil Code, which is the provision that regulates the
registration of preliminary agreements. Moreover, such registration will have the same effect
provided by the civil code for the registration of lease agreements with an initial term exceeding nine years. The effects of the registration of “rent to buy” agreements, however, could
also have—according to the agreement of the parties under the contract—a duration that
exceeds the term of three years provided for the registration of preliminary agreements, but
in any event, no longer than 10 years. The reference to the regulation provided for registration of preliminary agreements is, moreover, completed by the reference to the provisions
relating to the cancellation of registration, the special privilege over the asset to secure the
credits (of return) of the purchaser-to-be in the event of default of the seller, as well as to the
mortgage registered on the asset to be transferred. Among the most significant provisions on
the matter of “rent to buy”, it is worth mentioning: (i) the termination of the agreement in case
of lack of payment—even non-consecutive—of a minimum number of payments, agreed between the parties, not lower that the twentieth party of the whole number; (ii) the right of the
tenant, in case of termination due to default of the landlord, to the reimbursement of the portion of the rent ascribed to purchase price (accrued of legal interests); or (iii) the right of the
landlord, in case of termination due to default of the tenant, to obtain the return of the asset
and to receive the entirety of the rent as indemnity, unless the parties have differently agreed
under the contract.
All the above, the effect of which—as anticipated—is potentially “revolutionary”, should be in
any case assessed, taking into account the legal instrument that has been used by the legislator to implement the mentioned provisions, i.e. the Law Decree. In this respect, indeed,
even though the Law Decree becomes immediately effective, it is necessarily required to be
turned into law within 60 days after coming into force in order to avoid the loss of effectiveness. Therefore, it will be necessary to review which amendments will be introduced to the
law that will convert the Decree Sblocca Italia before considering the relevant regulatory
framework definitive.
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DECREE “SBLOCCA ITALIA”: NEWS ON THE MATTER OF LEASE
Authors:
Francesco Sanna, Partner
Francesco.Sanna@klgates.com
Anna Amprimo, Associate
anna.amprimo@klgates.com
+39.02.3030.2967
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