GRADING  

 

The different aspects related to both the lease and the rental, such as the duration of the contract, the renewal, the withdrawal / cancellation, the right of pre-emption, the compensation for the loss of goodwill, assignment-sublease-succession, are regulated by a detailed legislation that typifies the cases in question.

The real estate agent expert in the sector dedicates himself to personalized advice for the preparation of the contract, regulating the various aspects, in particular the fiscal aspect. Our offices make use of the direct collaboration of a partner law firm.

Rent and lease are two very similar concepts but, from a legal point of view, completely different. While the object of the lease is made up of productive assets such as land or a company, for which the property is not considered in its legal individuality, but as one of the building blocks of a unitary complex of movable and immovable property , linked to each other by a bond of interdependence and complementarity for the achievement of a specific production end, the object of the lease does not have a specific link with the productive activity (such as, for example, a home or an office ), and the property granted for enjoyment is considered as the main object of the store, according to its actual consistency.

 

THE LEASE

 

In detail, the lease of a property is that contract with which a party commits itself and obliges the other contracting party to enjoy an immovable property for a pre-established time, in exchange for payment of an agreed amount (rent). The parts of the lease are the lessor (which usually coincides with the owner of the property) and the conductor (ie the one who leases the property) both holders of rights and obligations. In particular, the landlord must:

- give the asset and keep the rented property in a way that serves the agreed use, supporting extraordinary maintenance costs;

- to guarantee the peaceful enjoyment of the property during the lease.

Instead, the tenant must:

-receiving the thing in delivery and observing the diligence of the good father of the family in using it for the use established in the contract, bearing the costs of ordinary maintenance;

-pay the fee in the ways and times established.

- return the thing in the state in which it had received, at the expiration of the contract.

 

THE LEASE OF BUILDINGS FOR HOUSING USE

 

There law 431/98 regulates the lease of buildings for residential use and essentially provides:

-The possibility to stipulate contracts with free determination of the fee.

For these contracts a duration of no less than 4 years is envisaged, renewable for another 4 years (4+4).

-The introduction of standard contracts, to be stipulated on the basis of agreements established at local level by the major trade unions, of three different types:

For ordinary residential use, the duration can not be less than 3 years renewable for another 2 (3+2).

For residential use transitory, the duration can not be less than one month and can not exceed eighteen months.

For the residential use of university students, in these particular cases the duration of the contract ranges from 6 months to 3 years.

The most important aspect of the types of contracts described in points 1, 2 and 3 concerns the fee which, in fact, is not free but conventional and varies according to the characteristics of the area in which the property is leased and based on specific elements concerning property. Equally important aspect concerns the tax benefits provided for these types of contract for both the tenant and the lessor.

- Written form and mandatory registration for all contractual forms.

 

THE LEASE OF BUILDINGS FOR USE OTHER THAN THE LIVING

 

This is a lease for a different use from the dwelling when the buildings are intended for:

  1. Commercial, industrial or craft activities, self-employment, for which the minimum contract duration can not be less than six years renewable for another six (6 + 6).
  2. Hotel and similar activities, theatrical, bathing establishments, for which the minimum duration of contracts can not be less than nine years renewable for another nine (9 + 9).

In seasonal activities, the same durations apply only to the contractualized interim period.

 

RENT

 

With the lease the contracting parties are the renter and the tenant: the first grants the property in enjoyment, while the second undertakes to pay an agreed fee (rent) and to take care of the economic management of the property.

The tenant has the following duties:

-manage the good in accordance with the economic destination, observing the rules of good technique, without changing its economic purpose, in the interest of production

-to carry the ordinary thick

The renter must:

- give the thing with its accesorri and pertinenze in the state to serve the use for which it is destined

-to carry out extraordinary expenses and repairs

The subject of the rent, within the rustic funds, as well as the civil code, is governed by special laws, with the imposition of precise rules on the subject of duration, fee, etc.

 

TAXATION AND FISCAL ASPECTS

 

The income obtained from the renting of a building (actual income) is taxed differently depending on the chosen tax regime:

  1. "Ordinary" taxation regime
  2. Alternative and facilitated system: "dry coupon".

 

The ordinary taxation regime

In the ordinary regime the taxable base on which the income tax is calculated depends on the type of contract stipulated.

 

CONTRACT

INCOME TO SUBJECT TO IRPEF

REDUCTION
Free contracting

Higher value between:
- the cadastral income (revalued by 5%)
- the rent (updated with the ISTAT revaluations)
5% at a flat rate

35% for buildings of historical or artistic interest
Conventional fee scheme *

Higher value between:
- the cadastral income (revalued by 5%)
- the rent (updated with the ISTAT revaluations)
30% if the building is located in one of the municipalities with a high population density

35% for buildings of historical or artistic interest

* The "conventional" canon is that determined on the basis of specific agreements defined at local level between the building property organizations and the most representative tenants' organizations at national level (Law of December 9th 1998, No. 431).

 

For the purpose of ascertaining the income tax due on the income from buildings deriving from leased buildings, the possibility for the office to adjust the income is excluded if the tax payer declares the higher amount between the rent resulting from the contract (reduced by 5) %) and 10% of the cadastral value of the property (determined by applying to the cadastral income the multiplier of the law, the same provided for the purposes of calculating the registration tax on sales and purchases).

 

The regime of the dry coupon

The "dry coupon" regime was introduced in 2011. It is an alternative and facilitated system of income taxation deriving from properties rented for residential purposes. It is optional and also applies to the appurtenances of the dwelling with it located.

What is it about:

The system of the dry coupon consists in applying to the annual rent a fixed tax in place of the IRPEF and of the relative additional, of the registration tax and of the stamp duty.

CONTRACT



RATE
TAXES NOT DUE

Free contracting

21%Irperf
Regional additional
Municipal surcharge
Registration tax
Stamp duty
Conventional fee scheme *

10%

Irperf
Regional additional
Municipal surcharge
Registration tax
Stamp duty

* The "conventional" canon is that determined on the basis of specific agreements defined at local level between the building property organizations and the most representative tenants' organizations at national level (Law of December 9th 1998, No. 431).

The substitute tax is applied to the entire annual rent, without considering the flat-rate reductions envisaged in the ordinary tax regime.

Scope of:

The dry coupon is reserved for natural persons holding the right of ownership or other real right of enjoyment on the leased property units. Companies and other entities are therefore excluded. In the case of property co-ownership, the option must be exercised separately by each lessor.

Properties for which you can choose the regime of dry cedola:

Homes belonging to the cadastral categories from A1 to A11 (excluding the A10 - offices or private offices), located for residential purposes;

The related appurtenances (only if located jointly with the home).

The leases of properties stacked as housing, but leased for office or mixed use, are excluded.

Commercial rentals with flat rate tax from 2019

Starting from 1 January 2019, it will be possible to opt for the tax to issue coupons also for commercial property leases: the novelty is contained in the Budget Law which in article 1 paragraph 59 establishes requirements and rules for access to the replacement taxation personal income tax.

Commercial lease payments, for which it will be possible to benefit from the 21% flat rate tax, must refer to lease contracts that meet the following requirements:

- to look at properties of cadastral category C, with an area up to 600 square meters, from whose count the relative appurtenances will be excluded jointly;
- be concluded in 2019.

In order to avoid evasive behavior, the 2019 Budget Law established that even in compliance with the aforementioned requirements, the flat tax tax regime cannot be applied for contracts stipulated in 2019 if on October 15, 2018 there is a contract not expired, between the same subjects and for the same building, interrupted before the natural expiry.

How to make use of the dry coupon regime, duration and revocation:

Who decides to make use of the dry coupon has the obligation to communicate it in advance to the tenant citing it in the contract, or subsequently through communication by registered letter. If not initially adopted, this choice may be exercised in the years following the first one, but must be carried out within the period set for the payment of the annual registration tax (that is, within 30 days from the expiry of each year).

The lessor has in any case the right to revoke the option in each contractual year following the one in which the same was exercised, revocation which must always be carried out within 30 days of the expiry of each year

Obligations and waivers:

With the communication the landlord automatically and imperatively waives the right to request any update of the fee, even if already provided for in the contract, including the update for ISTAT adjustment.

Payment of the dry coupon:

The tax must be paid within the same deadline for the payment of the IRPEF (deposit and balance) and with the same methods (payment with model F24, possibility to offset the tax due with any credits).

-Advertance Vat (in the first year of exercise of the option the down payment is not due, since the reference tax base is missing)

For the payment of the deposit, due in the amount of 95%, payment must be made in two installments (in a single payment if the amount is less than 257.52)

  • the first, by 40%, by 17 June, or 17 July (with an increase of 0.40%)
  • the second, of the remaining 60%, by 30 November.

Interest is payable on the amounts in installments, according to the same provisions as for the rationezione of the IRPEF.

-Valing balance

Also for the balance of the substitutive tax the same rules as for the IRPEF apply. The payment must be made by 17 June of the year following the one to which it refers, or by 17 July (with an increase of 0.40%)

Effects of dry coupon on income:

The income subject to "dry coupon" contributes to the formation of the total income taken into account for the calculation of:

  • deductions, deductions, benefits related to the possession of income requirements (for example, to determine the condition of family member tax charged, to calculate deductions for family loads, deductions for rentals fees, etc.)
  • for the determination of the Isee (indicator of the equivalent economic situation).

 

Cases of failure to register the lease.

In such cases, in addition to the penalties for failure to register, it is presumed, unless otherwise documented, to prove the existence of the leasing relationship also for the four tax periods prior to the one in the course of which the relationship is established. As the amount of the fee, on which the tax is to be paid, 10% of the property's cadastral value is assumed for the purposes of determining income. The registration obligation does not apply to leases with a total duration in the year less than 30 days.

 

Our agents, experts in the real estate sector, are dedicated to personalized consulting and the preparation of the contract, regulating the various aspects, including tax. 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.