We have simulation of the price of lease, when the parties agree to indicate a fee other than that actually agreed. The officially concluded contract will be registered with the Revenue Agency. However, there is a private agreement between landlord and tenant, where the actual rent is reported. We ask ourselves: “what would be the motivation for this simulation?”. Specifically, the landlord saves on taxes and the tenant usually gets a discount for the advantage granted. But let’s see what the consequences are if the lease price is simulated. The law and also the Supreme Court look at the phenomenon with great rigor and aversion. Therefore, since it may happen that one of the two parties appeals to the judge for the failure of the other to respect the official agreements, let’s see which agreements prevail.
Validity of the contract
First of all, the rental contract must be registered in order to produce its effects. In case of failure to register, neither party can obtain legal protection. In any case, it is possible to register the rental contract late, subject to payment of the taxes and penalties due. In this case, the registration will result in an amnesty with retroactive effect, ie from the date of stipulation. In the present case, when the contract is simulated, the parties can also register it. However, they agree that a different and separate agreement, kept secret, is effective between them. The latter, however, is considered null for the purposes of art. 13 of Legislative Decree. 431/1998, as contrary to the law.
Rent with simulated price
Returning to the question: “what are the consequences if the price of the lease is simulated? ”, we try to fine-tune the answer. In these cases, the fee contained in the registered contract is valid, together with the other contractual conditions. On the other hand, the same is not true with regard to the simulated agreement, since the nullity overwhelms the part of the rent in black. The official rent, on the other hand, is that due by law, with the consequence that it can be demanded by the lessor in the event of the tenant’s default. On the other hand, however, the tenant can avoid paying the additional sum, agreed in the simulated agreement, without risking eviction. If, on the other hand, he has paid more, in accordance with the aforementioned agreement, he can request the refund of the excess. Obviously, proof of payment is difficult if it was in cash but it is still possible to provide it with receipts, emails or messages and other means.
In this regard, the Supreme Court he also clarified that the concealed contract is not void just because the registration obligation has been breached. It is, in fact, also and above all because it is aimed at tax evasion, therefore it is contrary to mandatory rules. This type of defect is incurable and does not even allow for late registration.
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