Real Estate Law
Nctm’s Real Estate group is one of the leading groups in Italy offering the full range of services. We provide our domestic and international clients with efficient service in a timely manner.
Nctm assists and advises its clients on transactions related to the acquisition, sale and disposal of property, development of single properties or portfolios, whether carried out individually or through real estate companies and/or funds.
In the area of real estate funds, Nctm’s advice covers, with the assistance of other Nctm departments, all legal aspects of fund creation and management.
Nctm is one of the leading firms in the area of competitive bids for real estate spin offs, having managed or taken part in most of the major transactions carried out in this area.
Nctm Studio Legale advised BT Enìa Telecomunicazioni S.p.A., a company controlled by BT Italia S.p.A., in the purchase of a line of business relating to a telecommunication network extending for approx. 1,500 km in Emilia Romagna belonging to IRETI S.p.A. (a company of the IREN Group engaged in the field of public local grid services), which was advised by Studio Bettini Formigaro Pericu.
At the same time, an agreement was entered into between BT Enìa and IRETI, whereby the latter was granted the right to use, for a period of 30 years, renewable by further 10 years, 25% of the overall capacity of the purchased network; furthermore BT Enìa entered into an agreement with IREN Energia S.p.A. (another company of the IREN Group) whereby IREN Energia granted BT Enìa the right to use 25% of the physical space existing inside all service cable ducts of the district heating network owned by IREN Energia, for a period of 30 years, renewable by further 10 years .
This memorandum outlines the framework of the “rent to buy” agreement and the lease agreement with option to sell, in order to highlight the advantages that this new type of contract presents compared with the traditional scheme  .
This memorandum is composed in two parts: defining the main schemes of both types of agreements in order to distinguish between them; highlighting the main advantages when using the “rent to buy” instead of the traditional lease with option to sell.
The distinction between “rent to buy” and lease with option to sell.
The “rent to buy” is defined by law as “the contract, different from financial leasing, that provides the lessee with the immediate enjoyment of a real estate, and with the right to acquire the property of such asset at a certain deadline, against the payment of its price reduced by the part of licence fees indicated in the agreement”. Accordingly, the operation is structured into two parts. In the first part, the lessor grants the enjoyment of the asset, and the lessee pays a periodic licence fee which includes an amount paid for the use of the asset, and an amount based upon the anticipation of its purchase price. In the second part the lessor purchases the asset, against the payment of its price reduced by the amount already paid as part of anticipated sale price under the lease.
Whereas, the lease agreement with option to sell is a contract of leasing which includes an option providing for a separate contract to sell. Therefore, leasing and selling are not a single unified economic transaction under one sole agreement, instead there are two separate transactions with two different agreements. First, there is a transaction that falls under the general provisions of the lease agreement. Second, there is a transaction that falls under the option agreement as a separate agreement to sell. The transactions are connected in the sense that they are interrelated if one selects the option to sell and then pursues that economic result.
While the distinction between the rent to buy and lease with an option to sell may not seem clear and immediate, in the abstract, the agreement should be considered as a “rent to buy” when the parties intend to establish a single unitary relationship characterised by leasing with an additional amount paid for the right to buy. Alternatively, an agreement should be construed as a lease when the parties intend to undertake two separate transactions: leasing and leasing with an option to purchase. In this latter agreement, only a leasing amount is paid and not an additional amount in anticipation of the intended purchase price. In practice, the essential element to distinguish between the two contracts is represented by the composition of the licence fee. In particular, the agreement falls under the “rent to buy” scheme whenever the licence fee is split into two parts, a portion aimed to remunerate the enjoyment and a portion aimed to anticipate the price.
First advantage of the “Rent to buy”: the freedom of negotiation
The contract of “rent to buy” presents many advantages compared with the lease with option to sell. The first advantage consists in the freedom of negotiation. Indeed, the lease with an option to sell is entirely subject to the restrictions provided by the Law 392/1978 and by the Law 431/1998, and all the consequent mechanisms mandating the imperative substitution of clauses which do not comply with such provisions. In this agreement, each transaction remains governed by the regulation of the law for its respective type (lease, and option to sell). The mere connection between the transactions does not affect the applicable regulation.
Instead, the “rent to buy” is exempted by the application of the imperative provisions set by the law in relation to the lease. In this agreement, the parties shall remain entirely free to negotiate and agree upon the duration of the enjoyment, the early termination of the commitment, the amount and the raise of licence fees, the sublease and contract assignment, and all the mechanisms related to pre-emption, release, and indemnity for the loss of goodwill.
Second advantage of “rent to buy”: the enforcement in case of non-fulfilment of the lessee
The second advantage consists in the timing of the enforcement in case of non-fulfilment of the lessee. In the lease with option to sell, the lessor is compelled to bring two different actions before two different judicial authorities. Previously, lessor needed to demand the verification of the entitlement and the breach of the contract in an ordinary trial, though this trial should be enough rapid, since it is regulated by the summary procedure of eviction stated in the article 658 c.p.c. Afterwards, once the judicial verification is obtained, lessor may proceed with the execution. Consequently, the satisfaction of the lessor’s interest requires two different proceedings, causing protracted time and costs.
Instead, the “rent to buy” represents itself an enforceable title for the release of the asset, providing that it is stipulated in the form of a notarial deed, and providing that it contains an express termination clause in relation with the failure to pay the licence fees due. Therefore, in case lessee does not fulfil all the lease to buy obligations, the lessor does not need to demand the verification of the entitlement and the breach of the contract, and can immediately proceed with compulsory execution. Nevertheless, this occurs only in case all the conditions previously mentioned are met. Indeed, on the basis of article 474 c.p.c. and on the basis of article 605 c.p.c., notarial deeds represent enforceable titles for the release of the asset only when they provide a right to restitution that is irrefutable, liquid and collectable. Consequently, it is not sufficient just to have a notarial deed, it also must vest the lessor with a right to restitution that is already certain and does not require any judicial verification. In this regard, it is necessary that the contract provides an express termination clause.
Third advantage of “rent to buy”: the effectiveness against third parties
The third advantage consists in the possibility to claim the contract against third parties that have acquired rights on the asset after its registration. On the basis of the article 2643 c.c., the lease agreement could be registered only whether its duration would exceed nine years, and this does almost never happens in the economic practice. Since the acts subjected to registration in the land register are exhaustively stated by the mentioned norm, the lease that does not exceed the 9-year term limit cannot be registered. Consequently, the lessee bears the risk that, in the time between the conclusion of the agreement and the exercise of the option, another person makes a prejudicial registration(s).
This risk is resolved with the “rent to buy”, since it is always subject to registration, regardless of its duration. Furthermore, this registration produces the same effect of the preliminary agreement’s registration, that is to say a “booking effect” for the following transfer. In other words, the registration of the contract anticipates the effects of the registration of the following transfer. This neutralises the risks related to any later registration. However, this “booking effect” expires in case the lessee does not proceed to the registration after the transfer and, in each case, within ten years from the first registration.
In conclusion, the new “rent to buy” contract, as regulated by recent law, represents an agreement extremely helpful economic practice. The new contract ensures: (i) the parties remain free to negotiate the deal that best fits their interests without any restrictions, (ii) the lessor can obtain the restitution of the asset without the necessity of a judicial verification, and (iii) the lessee can avoid the risk of any prejudicial registrations.
The “rent to buy” agreement was created spontaneously in the economic practice. It has been typified only afterwards by the lawmaker with the Decree “Sblocca Italia” D.L. 133/2014 at the article 23.
Decree “Sblocca Italia” D.L. 133/2014, article 23, paragraph 1.
However, the restrictions to the freedom of negotiation provided by the Law 392/1978 is no longer applicable to the lease agreements whose licence fee exceed the amount of 250 k per year. In accordance with the recent D.L. 133/2014 article 18, the parties can freely derogate to all the imperative provisions set in the Law 392/1978.
Cassazione, 23 marzo 1992, n. 3587.
It should be pointed out that, in theory, even a lease agreement could be considered as an enforceable title for the release of the asset, provided that it is stipulated in the form of a notarial deed and contains an express termination clause. However, in practice, it does almost never happen.
Fabiani, Rent to buy, titolo esecutivo per il rilascio dell’immobile ed effettività della tutela giurisdizionale, in Studio per il Consiglio nazionale del notariato n. 283 del 2015, 1 ss..
 Delfini, La nuova disciplina del rent to buy nel sistema delle alienazioni immobiliari, in Riv. Trim. dir. civ. e proc. civ. 2015, 817 ss..
Grounds for ineligibility or forfeiture of statutory auditors who are members of an association of professionals
Pursuant to Article 2399, letter c), of the Italian Civil Code, statutory auditors whose patrimonial relationships with the company or its subsidiaries may affect their independence cannot be appointed and, if appointed, cease from their office. It has been questioned whether the case whereby a statutory auditor is a member of an association of professionals providing consultancy services to the same company reflects the case provided for by the law. Although the answer to the question was generally affirmative, doubts still remain as to the criteria adopted by the Supreme Court in order to determine the cases in which the independence of a statutory auditor can be actually considered as compromised.
The scope of the delegation of management in limited liability companies (s.r.l.): content and limits
By decision no. 25085 of 7 December 2016, the Supreme Court established the legitimacy of a general delegation of management, by the board of directors to individual managing directors with the power to act separately, to the extent that it is not aimed at excluding the exercise of a concurrent managing power by the managing body.
Data processing for marketing purposes: the protection of legal entities
By order No. 4 of 12 January 2017, the Italian Data Protection Authority set out the discipline on personal data processing for marketing purposes, finding the unlawfulness of both the processing of data collected through forms available on websites and the processing of data (namely, telephone numbers) autonomously collected on the Web.
Administrative liability of entities under Legislative Decree No. 231/2001 within groups of companies
Liability can be found, under Legislative Decree No. 31 of 2001, on the part of a holding company for offences committed in connection with the activities of its subsidiaries, provided that a) the person acting on behalf of the holding company acts in concert with the person committing the offence on behalf of the controlled entity; and b) the holding company appears to have obtained a concrete advantage from, or pursued an actual interest by way of, the offence committed in the context of the subsidiary’s activity.
The liability of non-executive directors and the duty to act in an informed way
According to decision no. 17441, of 31 August 2016, of the First Division of the Supreme Civil Court, the liability of directors without management power cannot originate from a general failure to supervise – that would be identified in the facts as a strict liability – but must be attributed to the breach of the duty to act in an informed way, on the basis of both information to be released by executive directors and information that non-executive directors can gather on their own initiative. Therefore, the determination of the prerequisites for the liability of delegating directors fits in a context accentuating the distinction between the duties imposed on managing directors and those typical of non-executive directors.
Considerations regarding the possibility to waive the termination effect of a notice to perform
Judgment No. 4205 of 3 March 2016 of the Supreme Court, Second Division, gives us the opportunity to provide a brief overview of the different opinions expressed by courts and legal commentators regarding the possibility to waive the termination effect of a notice to perform.
Validity of the shareolders’ agreements which provide a preventive waiver of the liability action against the directors when taken at the conclusion of the mandate
With the decision of 28th September 2015, No. 19193, the Court of Rome stated the validity of the shareholders’ agreement clauses which provide that the “incoming” shareholders undertake not to bring the liability action against the “outgoing” directors or not to vote for it in the general meeting.
The Supreme Court’s overruling: the banking and finance agreement signed exclusively by the client is null and void
The Supreme Court decides again the issue of the validity of the so called “single signature” agreements, i.e. the copy of banking and finance agreements, kept in the bank’s archives, bearing the client’s signature and not the bank’s one. The Supreme Court holds that these agreements are null and void, thus unenforceable vis à vis the account holder.
Purchase of shares of a general partnership: can the mistake on the value of the share be legitimately qualified as an essential mistake?
The Tribunal of Milan has stated that, as a rule – also with reference to the purchase of shares of a general partnership – the contract can be avoided, upon application of a party, for an essential mistake, only if the contract contains an explicit guarantee on the value of the assets and on the quality of the goods of the company (a guarantee that, according to the Tribunal, the contract at hand lacked).
The new rules regarding the proceedings before the Supreme Court (Decree Law n. 168/2016, converted into Law n. 197/2016)
With another “late summer intervention”, the legislator intervened once more as a matter of urgency to modify the code of civil procedure, with particular reference to the rules regarding the proceedings before the Supreme court: on August 31, 2016, Decree Law n. 168/2016 was published, entitled “Urgent measures for the resolution of disputes before the Supreme Court and for the efficiency of the judicial offices” (“D.L. 168/2016”).
The joined chambers of the court of cassation on the qualification and challenge of the non-final award and of the partial award
“An award that partially decides on the merits of a dispute, immediately challengeable pursuant to art. 827, paragraph 3 of the code of civil procedure, is both that of a generic condemnation pursuant to art. 278 of the code of civil procedure, and the award that decides one or some of the questions of the case, without defining the entire proceedings; instead, the awards that decide preliminary issues are not immediately challengeable.”
Europe Must Go On
The 60th anniversary of the Treaty of Rome sees the EU much changed from its early origins. We have moved from an economic community to a Union based on civil and human rights and the values common to the peoples of Europe. It has been, and is, a great success.
However it is clear that the Union is not without its troubles on this important anniversary. The Brexit negotiations are about to start. There are nationalist and decentralizing tendencies in many Member States and important elections in Germany and France. There are real problems of immigration and the absence of, or the uneven distribution of, economic growth.
These problems should not daunt us. Our fathers in the integration process faced greater problems. They sought to make peace and to make an institution to guarantee peace from the ashes of the most destructive of European wars.
What we must do is face up to our problems and resolve them. We have great shoulders to stand on. We have been given the evolving EU treaties, the Single Market, a strong Court of Justice in Luxembourg, good competition law, the rights of citizens, in other words a strong legal framework.
This is no time for faintheartedness. We must move on with courage and ensure that the Union is with us for more than another 60 years.
In this issue, we analyse a decision of the Italian Consiglio di Stato according to which the publication of applications for renewal of existing maritime port concessions in the EU Official Journal is not required. Any third party wishing to submit competing bids is however guaranteed by the possibility of preventively inquiring about the expiry of a concession as well as by the investigation conducted by the Port Authority (today Port System Authority), which must comply with the principle of selecting the tenderer offering the «best guarantees for a profitable use of the concession».
We then examine the differences in Italian law between a contract of carriage and a procurement contract for the supply of carriage services. It is important to properly classify the type of contract, and here we explain why.
Let us then examine two recent judgments of the Italian Regional Administrative Courts. The first one is on the possible ways of awarding a maritime concession. The second one relates to the applicability of the Italian Public Procurement Code to the management of intermodal freight terminals, the unavoidable consequences of which are summarised here.
In light of the forthcoming entry into force of the IMO Convention for the Control and Management of Ships’ Ballast Water and Sediments, we look at the impact it is expected to have on the shipping sector. One of the major problems is that, to date, there are no clear indications on how to make ships compliant with the new standards. Moreover, there are countries who have more stringent regulations than the IMO Convention. The risk is therefore to invest in equipment that can be deemed unsuitable at a later stage.
A recent ruling of the Italian Supreme Court allows us to briefly discuss the issue of non-payment of insurance premiums and consequent suspension of cover. The Supreme Court confirmed that insurance coverage applies if an insured event occurs within the «grace period», regardless of whether the next premium instalment is paid.
Concerning airports, the Italian Supreme Court opened the door to possibly finding liability on the part of ENAC (the Authority supervising airport activities and air transport in Italy) in case of airplane damage caused by poor maintenance of taxiways.
Finally, we conclude with our usual review of the news from the world of maritime and port labour. The most important news is about the renewal, in Italy, of the National Collective Bargaining Agreement for shipping agencies’ executives, which brought some improvement to the current situation.
We want to thank our colleagues at Nctm Brussels’s office for their contributions highlighting the most significant actions taken by EU institutions in the international shipping and trade sector.
You will also find a list of our events taking place at our Milan and Rome offices, in addition to the usual update on our firm’s activities over the past two months.
According to the Court of Cassation a concordato plan not describing in detail how it can be implemented is not feasible
The Court of Cassation (decision No. 4915 of 27 February 2017) lowered the threshold allowing the Bankruptcy Court to review the feasibility of the concordato preventivo proposal.
Does a concordato proposal need to assign all future earnings to the creditors ?
The Court of Florence (November 2, 2016) confirmed that the debtor can retain part of his assets, with a view to support the company’s recovery and in derogation to principles of liability of the debtor
Cram down pursuant to Art. 182-septies of the Italian Bankruptcy Law, if the agreement is more convenient for the bank than bankruptcy liquidation
A ruling of the Court of Padua of 31 December 2016 is compared with few other known Court decisions regarding the extension of the effects of a debt restructuring agreement to dissenting financial creditors