The Court of Cassation rules on nullity of the late registration of agreements containing an increase in the rent of property intended for commercial use.
The case referred to in the sentence concerned the request for eviction of two properties intended for commercial use; the tenant did not pay the increased rent agreed upon in a supplemental contract of lease.
The issue brought to the attention of the Court of Cassation was to verify if – in non-residential lease agreements – a late registration of the latter containing an increased sum than that indicated in the first registered contract would be considered valid regularisation, following so the same principle applicable for residential lease agerement as found in Cass. S.U., 17 September 2015, n. 18213 where the exclusion of any regularisation of late registration prevents. the party – who openly allege its quality of tax evader – to invoke judicial protection.
In this regard, however, it is appropriate to make some distinctions.
First of all, in case of non-registration of the entire lease – whether intended for residential or non-residential use – an ex tunc registration regularisation is permitted. It is admitted not only by tax law, but also by the rule of law.
The discipline is different in case of late registration of the only supplementary agreement containing an increase in the original rent fee.
Art. 13 of Law n. 431/1998 provides for the nullity of any agreement which determine a higher rent than that agreed upon in the first lease contract, only under leases for residential use. The same cannot be said with reference to leases for commercial use. In this case, there would seem to be no legislative provision that penalises with textual nullity any increase in the rent.
However, even in the absence of a legislative provision, it is necessary to reach the same conclusion.
The Court of Cassation with the sentence n. 18213/2015, in the matter of renting for residential use, provides the nullity in case of late registration of the agreement containing a surcharge and states that the nullity would also result in the absence of a specific legislative provision by the general reference to art. 1418 c.c. (without, therefore, any reference to a precise paragraph).
In conclusion, it will not be possible to recognize the effective regularisation of a late registration of an agreement containing an increase in monthly rent for commercial use as not only does such an agreement detects a clear function of tax avoidance but violates the tax law on registration requirement, which has taken on the status of a mandatory rule.
A contract containing an increase in the price of the rent of buildings used for commercial use late in registration is void. It is a virtual nullity ex art. 1423 c.c.