Short Country Introduction
In Italy most of the economic activities are carried out in non-owned properties. For this reason, the debate about the impact of COVID -19 in the real estate sector has mainly focused on the fate of Commercial Lease Agreements.
Are there any emergency and/or interim measure regarding Commercial Lease Agreements in your jurisdiction?
The Italian Legislator has adopted a general measure applicable to all obligations.
According to Article 3, paragraph 6-bis, of Decree Law no. 6/2020, complying with the measures adopted to contain the epidemic is always valued in order to exclude the debtor’s liability, pursuant to and for the purposes of Articles 1218 and 1223 of the Civil Code, or the application of any forfeiture or penalties connected with delayed or omitted execution of the contract.
In addition, the Legislator has adopted certain provisions for transport and tourism contracts to be executed during the lockdown (including rentals of tourist apartments, hotels or holiday homes), allowing the creditor to withdraw from the contract and obtain a refund or a voucher to be used within one year.
No general measures have been taken with regard to commercial lease agreements, with the exception of certain fiscal measures of general application and certain provisions for the rental of gyms, swimming pools and sports facilities owned by private individuals.
Is it possible to cancel, suspend or modify the Lease Agreements conditions due to the COVID-19 crisis?
In order to answer this question, two phases must be considered.
The first phase, in which the economic activity of the Tenant was prohibited by the State in order to contain the epidemic. The second phase, in which the State bans ceased and the Tenant returned to business.
In the first phase, the Tenant had to pay the rent for a property that was in fact useless (safe as a warehouse and in view of business restart).
In this situation, interpreters and the first rulings tend to admit that, pursuant to articles 1256 and 1464 of Italian Civil Code, the Tenant may apply to the Court to ask for a reduction in the rent, given the impossibility of the Landlord’s performance, that is both temporary (because limited to the duration of the State prohibition) and partial(because the Tenant enjoyed the property anyway, although for few purposes). In application of these principles, on May 29, 2020, the Court of Rome ruled that the Tenant was entitled to a 70% reduction in the rent.
A similar solution is provided by Article 216 of Decree-Law No 34/2020, according to which the suspension of sporting activities, due to the Covid – 19 emergency, is always considered, in accordance with Articles 1256, 1464, 1467 and 1468 of the Civil Code, as a factor determining an imbalance in the interest of the parties in the lease of gyms, swimming pools and sports facilities owned by private individuals. As a result of this imbalance, the Tenant is entitled, solely from March 2020 to July 2020, to a corresponding 50 per cent reduction in the rent, unless proof of a different amount is provided by the party involved.
In the second phase, the Tenant has restarted his business, but he is struggling to pay the rent, because of the drop in revenues caused by the general economic crisis started by the Covid – 19 and compliance with the containment measures.
In this case, the prevailing opinion is that there is no general rule which entitles the Tenant to obtain a reduction in the rent.
As a matter of fact, the Tenant’s financial difficulties do not give him the right either to reduce the rent or to terminate the contract, but there are exceptions.
One exception is given, in the case of a business rental, by article 1623 of Italian Civil Code, according to which the Tenant has the right to a reduction in the rent, or to the termination of the contract, provided that, as a result of a statutory provision or a measure of the authority concerning production management, the relationship is significantly altered so that the parties of the contract suffer a loss and an advantage, respectively.
Another exception is offered by art. 27, paragraph 8, law no. 392 of 1978, which, in the presence of serious reasons, allows the Tenant to withdraw from the contract with 6 months’ notice. The Italian case law defines “serious reason“: “facts beyond the control of the Tenant, unavoidable and occurred subsequently to the execution of the contract, such as to make the continuation of the contractual relationship burdensome, and may consist, for commercial leases, also in the (negative) trend of the economic conjuncture occurred and objectively unpredictable “(Italian Supreme Court, decisions n. 8706/2015, No. 1206/2015, No. 26892/2014). According to this interpretation, it will be reasonably easy for the Tenant to invoke the negative economic situation caused by Covid -19 in order to terminate the contract.
However, the solution leading to the termination of the contract is considered unsatisfactory, as the parties should aim to maintain the contract, albeit under different economic conditions.
For this reason, in Italy the discussion has focused on whether or not there is an obligation for the parties to renew in good faith the terms of the contract, and, in the event the negotiation fails, a right to apply to the Court in order to reconduct the contract to fairness conditions.
Some argue that the State should adopt a general measure in order to avoid case-by-case interpretations.
Which courts have jurisdiction, what are the expected trial times and what are the costs?
Where the Tenant fails to pay the rent, the Landlord is entitled to obtain a judicial eviction from the Tribunale (Court of first instance) in a relatively short period. The eviction is not granted in case the Tenant objects on grounds of written evidence or there are serious reasons against granting the eviction.
The first cases triggered by the Covid – 19 emergency concerned requests by some Tenants that the Court prohibit the enforcement of guarantees issued by banks for the payment of rents.
Both procedures represent an initial test case providing the first guidelines for the legal issues raised by Covid -19 emergency.
What financial assistance packages or ways to mitigate the financial impact have been adopted?
In order to contain the negative effects deriving from the prevention and containment measures related to COVID-19 emergency, entities carrying out business activities are granted, for the year 2020, a tax credit in the amount of 60 per cent of the amount of the rent, relating to the month of March 2020 (Article 65 of Decree-Law No 18/2020).
For the same reasons, entities carrying out business activities, art or profession, whose income or remuneration does not exceed 5 million euro, are entitled to a tax credit of 60 per cent of the monthly amount of the rent for commercial lease, leasing or rental of property for non-residential use for industrial, commercial, craft, agricultural, tourist activities or for professional purposes (Article 28 of Decree-Law No 34/2020).