To remedy the current economic difficulties such as lack of liquidity and difficulty in accessing bank credit, the parties, as an alternative to rent to buy, can resort to other and different contractual forms such as, for example: – leasing with future sale agreement; – the sale subject to title; – the sale at a price in installments with registration of the legal mortgage; – the preliminary with anticipated effects. The characteristics of these negotiating figures and the advantages and disadvantages they present for the seller, on the one hand, and the buyer on the other, are summarized below.
LEASE WITH FUTURE SALE AGREEMENT
Mixed contractual form: lease plus preliminary sale connected to each other. Form: the written form is mandatory. In particular, if you want to proceed with the transcription it must be a public deed or an authenticated private deed. Location: can be transcribed only if older than nine years. Preliminary: transcriptable pursuant to art. 2645bis of the Italian Civil Code (with limited booking effectiveness; maximum 3 years). Usually, the unilateral preliminary agreement can also be transcribed (i.e. the preliminary agreement in which only one of the parties undertakes to enter into the definitive contract; obviously, for the purposes of transcription, it must be the preliminary agreement in which the obligation to enter into the agreement is assumed by the lessor/seller ).
Consideration: it can be variously modulated, in relation to the real purposes or to reach the sale of the asset at the end of use. For example, it can be expected:
- an ordinary rent (in line with market rents) plus a deposit or an advance price connected to the preliminary contract (to be paid upon signing the preliminary contract or in instalments);
- an increased fee, made up of two components: one to be charged for use and the other to be charged to the sale price (and to be considered, in whole or in part, as a confirmatory deposit in the event of failure to stipulate the contract of sale due to default by one or the other party).
SALE WITH RESERVE OF OWNERSHIP
This case, although regulated in the civil code in the section dedicated to the sale of movable things, is also unanimously admitted for real estate. The property is delivered upon stipulation while ownership transfers with the payment of the last installment. The buyer assumes all risk for the deterioration of the goods and for liability towards third parties; he is also responsible for the obligations for the custody of the property and for maintenance costs. Form: written document; it must be a public or authenticated deed in order to proceed with the transcription. Consideration: the price is paid in installments and therefore allows the purchase to those who do not immediately have the necessary liquidity.
Notwithstanding the contrary agreement, failure to pay an installment that does not exceed one eighth of the price does not give rise to termination. In the event of termination due to the buyer’s fault, the seller must return the installments collected, subject to the right to fair compensation for the use of the asset and compensation for damages.
PRELIMINARY TO ANTICIPATED EFFECTS
It is a preliminary which provides:
- immediate delivery of the goods to the buyer;
- variable duration and price: the shorter the contract lasts, the more the price decreases to encourage the buyer to anticipate the signing of the final contract as much as possible;
- an express termination clause for the buyer’s default;
- the possible right of withdrawal for the buyer. Form: written deed, public or authenticated deed for transcription. You will have to proceed with:
- simultaneous payment of the deposit and/or an advance of the price;
- payments of periodic advances (e.g. monthly) that take into account the immediate use, the expenses and the tax burden borne by the seller;
- variable penalties, to be paid by the purchaser and in relation to the duration of use, both in the case of withdrawal and of default.
- exit strategy hypothesis