What types of arrangement does the law recognize which allow occupation and use of real property for a limited period of time?
Italian law differentiates between property leases (locazione) and business branch leases (affitto di azienda). Property leases are used for residential or commercial premises and they are governed by the general provisions of the Italian Civil Code and the by the special legislation on tenancy.
In relation to non-residential leases, certain distinctions apply to hotels and other premises used for activities involving contact with the public. Mandatory provisions apply regulating the landlord/tenant relationship in favour of the tenant. These include provisions relating to the term of the lease, rent increases, the tenant’s right to carry out activities involving contact with the public etc. Any deviation from these in the lease contract which is less favourable to the tenant is considered invalid, even if explicitly accepted by the tenant. An invalid clause, however, does not render the entire contract invalid.
Non-residential lease agreements (ie for offices, retail space, hotels etc.) providing for a yearly rent greater than EUR250,000.00 (grandi locazioni), provided that such leases do not affect buildings with a historical value confirmed by a local administrative order, may not be subject to the mandatory provisions of the Law no. 392 of 27 July 1978 (Tenancy Law). In other words, for such leases, the parties are free to agree terms which depart from the mandatory provisions of the Tenancy Law, which are generally to the benefit of the tenant. This new option applies to any lease agreements entered into after 11 November 2014 by means of Italian Law Decree no. 164/2014 (the “Decreto Sblocca Italia”). Certain rules applicable to lease agreements and established by the Italian Civil Code, however, still apply (eg the rules relating to the allocation of responsibility for maintenance between the landlord and the tenant).
If the leased assets are a ‘going concern’ or ‘business branch’ (azienda or ramo d’azienda), as defined under Italian law, the above-mentioned mandatory provisions of the Italian Tenancy Law do not apply and the parties are free to contract as they wish. However, in order to avoid any risk of requalification of the business branch lease to a property lease agreement for commercial use (with the application of the relevant mandatory provisions), the right to use the premises for the exercise of the tenant's activity shall represent only one of the various elements constituting the business branch. The same applies to services agreements, that can be used in lieu of a property lease agreement where the owner/supplier offers – besides the right to use certain real estate premises – some specific additional services against the payment of a consideration.
Italian law also recognises a bailment contract for granting free use of premises (comodato). Under this type of contract, the use of an asset can be granted free of charge for a specific purpose over a set period of time. Contracts like this are often used when a tenant needs to carry out fit-out and decorating work on the premises before the start of the lease.
The relevant energy performance certificate (APE) must be either attached to or mentioned in any new lease agreement (whether affecting a property or a branch of a business) or sub-lease (but not to a renewal), depending on the relevant Region where the property is located. Where the certificate is missing, sanctions may apply to both the tenant and the landlord.