The figure of the broker in real estate affairs, entering the market research phase, aims to favor the meeting between demand and supply offer, supporting the seller in defining the characteristics, quality and more probable market value of the asset in question of alienation and the buyer in ascertaining his needs and the related economic appropriations necessary for full satisfaction.
Alternatives to direct sales they see consolidated typifications. Multiple circumstances, mainly due to the unavailability of liquidity in the immediate future, different willingness to use the same, need of time not short or indefinite.
BUY HOUSE DIRECTLY FROM THE MANUFACTURER
If the purchase concerns a building under construction (commonly called "on paper"), the law has prepared a series of precautions and protections in favor of the buyer against the risks that may arise until the signing of the deed, especially the failure of the manufacturer.
- the contents of the preliminary contract are carefully regulated;
- there is the obligation for the seller to issue bank guarantee / insurance to guarantee the sums delivered or to be delivered until the deed;
- the manufacturer is obliged to issue a ten-year insurance policy to the purchaser to cover any damage arising from the total or partial ruin of the building or from serious construction defects;
- it is necessary to split the mortgage and mortgage by the manufacturer before signing the sales contract; it is forbidden for the notary to proceed with the sale in the absence of the title for splitting, or the cancellation of the mortgage, if there is no loan;
- the purchaser has a pre-emptive right to purchase at auction if it is a residence used as a main residence.
LIVING REAL ESTATE LEASING
The regulation of residential housing leasing provides for tax incentives onpurchase or construction of buildings to be used as a main residence. The objective of the measure is to facilitate, especially for young people, the purchase of residency by using the leasing instrument as an innovative financing channel compared to the ordinary mortgage loan instrument.
The interested parties
Residential real estate leasing, introduced by the Stability Law n. 208/2015, can be used by subjects with total income not exceeding € 55,000, provided they do not have a main residence.
The tax advantages
Holders of contracts signed from 1 January 2016 until 31.12.2020 may deduct the costs of the "first home" lease from the tax return.
In particular, for young people under 35 on the date of signing the leasing contract, and with total income not exceeding € 55,000, the tax incentives are:
- the deductibility equal to 19% of the lease installments (up to a maximum amount of 8 thousand euros per year);
- the deductibility equal to 19% of the price of the redemption (up to a maximum amount of 20 thousand euros).
For individuals aged 35 or over and with a total income not exceeding € 55,000, the tax incentives are:
- the deductibility equal to 19% of the lease installments (up to a maximum amount of 4 thousand euros per year);
- the deductibility equal to 19% of the price of the redemption (up to a maximum amount of 10 thousand euros).
For both under-35s and over-35s the registration tax on purchases using the "first home" subsidies is reduced to 1.5%, but the same tax is to be calculated on the purchase price, because it is not applicable the price-value mechanism.
If the leasing company purchases the dwelling from the manufacturer (or other VAT payer), the reduced VAT rate of 4% applies.
With the stipulation of the finance lease contract, the leasing company (bank or financial intermediary authorized by the Bank of Italy to exercise the leasing business) assumes the obligation to purchase or have the building constructed, on choice and according to the indications of the user, who receives it in use for a fixed period of time against a periodic fee (fee). Upon expiry of the contract, the user has the right to redeem the property of the property, paying the price set by the contract.
The tax benefits do not depend on the objective characteristics of the property: the deductions are due to any home even if belonging to the cadastral categories A / 1, A / 8 and A / 9 (the latter excluded from the "first home" facilities for the tax register). This may be a building that has already been completed and declared suitable for use, a building for residential use to be built on a specific land, a building for residential use under construction and to be completed or even a residential building to be renovated.
- The suspension of payments
The first home lease provides that the customer can request the suspension of the contract in case of loss of employment in cases of subordinate employment, agency work relationships, commercial representation and other relationships of collaboration, even if not subordinate. The suspension of the contract, however, is not provided for in the cases of consensual termination of the employment relationship, of termination of the employer for just cause, of the worker's resignation not for just cause, of resolution for age limits with the right to retirement or seniority pension, dismissal for just cause or justified subjective reason.
The suspension, in any case, does not determine the application of any commission or costs of investigation and takes place without requests for additional guarantees.
- The termination of the contract
In the event that the customer becomes in default in the payment of the fees due, the leasing company is allowed, for the release of the property, to act with the eviction validation procedure, ie with the same procedure required by law for ordinary leases in cases of arrears of the tenant.
The 2016 Stability Law provides that in the eventual subsequent asset relocation / sale activity, the leasing company must comply with the criteria of transparency and publicity towards the defaulting user:
in the activities of relocation / sale of the asset must adopt procedures that guarantee the best possible result in the interest of the defaulting user; once the asset has been sold and / or relocated, the leasing company must return to the defaults user the proceeds from the sale and / or relocation, net of the following sums which have the right to withhold:
- the sum of the overdue and unpaid installments up to the date of termination;
- the subsequent royalties following termination;
- any costs incurred, insurance, technical / legal costs, condominiums, etc .;
- the price agreed upon for the exercise of the final redemption.
- In cases of bankruptcy of the grantor
In the event of bankruptcy or compulsory administrative liquidation of the bank or leasing company, the leasing contract shall continue on a regular basis and the rules established by the bankruptcy law shall apply.
THE RENT TO BUY
The rent to buy is a recent type of contract in our system, introduced by the Decree Italy Sblocca (DL 133/2014 converted into Law 164/2014), with the stipulation of which the owner / grantor delivers the property to the tenant / future buyer, against payment of a monthly / quarterly / annual fee; at the end of a period of time fixed in the same contract the tenant decides whether to purchase the asset, deducting from the price a portion of the already paid fees.
The contract of rent to buy it can be stipulated for any type of property: for residential, commercial, productive, directional use, and also with regard to land.
It is divided into two phases (of which the second only possible):
- the first is that of granting the use of the building;
- the second is the eventual transfer of ownership of the property from the grantor to the tenant; the law does not provide for an obligation of the parties to conclude the sale deed, nor does it provide for the asset to be transferred automatically at the end of the period of use, but only gives the tenant the right to purchase.
The different components of the canon
The contract must specify the two different components that make up the fee to be paid: the one intended for payment of use (remuneration of enjoyment) and that to be charged to the price in the event that the tenant decides to exercise his right to purchase.
The importance of transcription
The transcription of the rent to buy refers to the provision relating to the transcription of the preliminary contract of sale (article 2645bis of the civil code) but extends the three-year term provided therein, to cover the duration of the contract agreed between the parties up to ten years from the date of stipulation, and produces a double effect , in relation to the two "phases" in which it is divided:
- an effect of enforceability to third parties, with regard to the granting of use;
- a reservation effect with regard to the obligation of the grantor to transfer ownership of the asset in the event of exercising the right of purchase by the tenant. In this way full protection is guaranteed to the tenant, allowing him to acquire the property in the "rule of law" in which he was at the time of the signing of the contract rent to buy, and at the same time neutralizing any transcripts or injurious registrations subsequent to the transcription of the same.
If the tenant is in default
In case of default of the tenant to the obligations assumed by the same with the signing of a rent to buy (including the obligation to pay the fee), the grantor may:
- start a forced execution procedure on the property of the tenant, (Article 2910 of the Civil Code) in order to obtain what is due to him, for example in cases of protracted arrears.
- request the fulfillment in specific form (Article 2931 of the Civil Code), in the event that the non-performance of the tenant regards an "obligation to do", such as that of taking care of the ordinary maintenance of the property;
- request the termination of the contract (Article 1453 and following of the Civil Code), provided that the non-performance is not of minor importance.
- the right to compensation for damages remains in all cases.
The default of the grantor
From the stipulation of a rent to buy, obligations derive from the grantor, the main of which is certainly the obligation to deliver the property to the tenant. The grantor is also obliged to take all necessary measures and behavior to ensure the tenant enjoy the property. Another fundamental obligation for the grantor is to proceed with the sale of the asset if the tenant intends to proceed with the purchase, in compliance with the agreed terms. In case of non-fulfillment by the grantor of his obligations, the tenant may request:
- the fulfillment in specific form (Article 2931 and following of the Civil Code) in the event that the non-performance concerns the obligation to sell the property or other "obligation to do", that is an obligation to hold a certain behavior or to perform a certain activity;
- the termination of the contract (art. 1453 et seq. of the civil code) provided that it is a non-negligent breach.
- remains in any case the right to compensation for damages.
If the tenant decides not to buy the property
Failure to exercise the right to purchase the property granted for enjoyment does not constitute a default by the tenant. If the tenant decides not to proceed with the purchase, the contract, at the expiry of the agreed term, will cease to produce any effect.
Consequently, the grantor will be entitled:
- at the return of the building;
- to withhold the fees until then paid for the entire component referred to the use, while it must return to the tenant the part of the component to be charged against the sale, to the extent established in the contract.
The return of the property
Both in the case of default of the tenant, and in the case of failure to exercise the right to purchase, the grantor has the right to the immediate return of the property.
Who pays the taxes related to the possession of the property
During the period of use, the taxes related to the possession of the property (for example, the IMU) are charged to the owner, as in the case of leases. The TASI, instead, must be paid in part by the owner and partly by the tenant, according to the percentages set by each municipality. The TARI (tax on waste) is instead charged to the tenant, who as owner of the building uses the waste collection service.
Scheme of the contract per person to be nominated
The rent to buy it can also be stipulated with the scheme of the contract for a person to be appointed, which gives the holder the right to replace another person who takes over the rights and obligations arising from the contract.
Our agents, experts in the real estate sector, are dedicated to personalized advice and the preparation of the contract, regulating the various aspects, including tax, for the occurrence of the correct fulfillment. The consultancy is the result of impartiality, independence, professionalism and competence aimed at the full satisfaction of the interests of the parties involved in each contractual store. Our offices make use of the direct collaboration of a law firm.