The last time it happened was in 1959. Now, thanks to the economic crisis, in July this year Istat recorded a negative figure for the parameter used to update rents (-0.1% on an annual basis). In August the data returned positive, and in any case, even in the event of a downward revision, the figures at stake would be limited (12 euros on an annual rent of 12 thousand, which at 75% equals 9 euros). But the question on a theoretical level is interesting: what would happen if over the 12 months the data had a minus sign? We see. The regulation of rentals provides for a clear distinction: residential rentals, regulated by law 431/98, and those for different uses, regulated by law 392/78 (articles 27 and following). Common characteristics are: the free original determination of the fee and its substantial immutability, with the possibility of updating only. For residential uses, law 431/98 provides nothing. In practice, it is accepted that the parties can agree to update the fee during the relationship and the reference criteria are no longer tied to Istat data alone. For leases for different uses, however, the update must be expressly agreed upon; it is equal to 75% of the Istat and is subject to the request. However, from 1 March 2009, article 41, paragraph 16-duodecies of Legislative Decree 207/08 allows, in the event of a lease duration exceeding the minimum six years, the elimination of the 75% constraint of the Istat data. Therefore, if the exclusion of negative application is agreed by the parties, the problem does not arise. If, however - a more frequent hypothesis - there is a generic agreement on the update, it would seem that the negative application of the Istat data should be considered admissible, in theory. The concept of updating, in fact, concerns the modification of the amount following the data (positive or negative). And it is triggered only after the request, which however is not the prerogative of the landlord alone. It must also be said that the trick of requesting cannot be used the update with reference to a different monthly payment different from those in which the Istat Index was negative, as the update takes effect annually with reference to the date of original signing of the contract. In essence, given that requesting the update is not an obligation, and that the one relating to the period July 2008 - July 2009 is the only one to register a minus sign, for the landlord whose contract refers (directly or indirectly) to the update based on the month of July the most appropriate choice is to 'skip' a year. That is, by failing to ask for the update this year and waiting for July 2010, when, in all likelihood, the Istat index will return with a positive sign. Of course, if the tenant wanted to ask for the update in turn, it is difficult to argue that the landlord could refuse to lower the rent. However, the small amount of the reduction, for residential rentals, would be such as to make both the tenant's action and the landlord's opposition absurd. Of course, it must be considered that at the time of law 392, double-digit inflation had suggested limiting the update to 75% so as not to make it too burdensome, in the belief that a deflationary phenomenon would never be created. It is therefore true that the parliamentary work relating to law 392/1978 does not mention the possibility of updating the fee downwards. But the new one on rentals, 431/98, does not contain references to Istat data, and therefore no parliamentary works referring to the same law that have addressed the issue can be found. For locations for different uses, however, even more so, the references to parliamentary work still address a concept of updating which cannot be considered only in a positive sense. And in these cases, given the much higher fees, the effects may be broader and perhaps sufficient to justify litigation.
source: Sole 24 Ore
Grimaldi Padua
Padua - 35137 - Via G. Matteotti, 27
e-mail: padovacentro@grimaldifranchising.it
Tel. +39 49 663 033 - VAT number 05301660287
Grimaldi Cadoneghe
Cadoneghe (PD) - 35010 - Via G. Franco, 2/A
e-mail: cadoneghe@grimaldifranchising.it
tel. +39 049 88 736 56 - VAT number 05322440289