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by davide granelli on 16/04/2018

A “rent to buy” contract, inspired by the more traditional leasings, is being used in the last few years in order to allow the purchase of real estate properties also in situations where the buyer can’t gain access to a bank finance.

Without a specific regulation, the procedure created different forms of contracts, characterized by different levels of safeguard of the parts, according to the agreements between them. Later on, the legislator introduced into our set of rules the protocol for residential lease agreements according to the following transfer of the property, arranging suitable safeguards for the parts, and facilitating the diffusion of these agreements.

Today, therefore, the term “rent to buy” commonly means the new form of agreement introduced by the legislator (art. 23, first comma, D.L. September 12th 2014, n. 133, so called “Sblocca Italia” decree, converted by law November 11th 2014, n. 164). It is therefore a residential lease agreement similar to rent, which establishes the right of the buyer to purchase the property within a determined expiration. Within this broad category of agreement, it is allowed to both sides to regulate differently their relationship, most of all with regards to the repartition of the periodic payment among the fee for residency and the advance payment for the future (possible) purchase. It’s still possible however to use alternative kinds of agreement that allow a similar but different result. The use of promise of sale and purchase agreement is still allowed with early delivery of the property and payment by instalments of the down payment or deposit, which is different from “rent to buy” essentially for the commitment to buy, instead of a simple possibility, and is currently defined with the term “help to buy”.

Stipulating a buying and selling with reserve on the property (where the full payment works as condition precedent) is also possible, otherwise a buying and selling by instalments subject to rescission in case of lack of payment, characterized by an immediate transfer of the property in view of a payment by instalments, guaranteed in view of a rescission that causes the transfer of the property back to the seller, in case of non-fulfillment by the buyer.

We can also resort to the traditional legal mortgage as a warranty of the deferred payment of the price.

Nowadays we therefore have plenty of instruments that we can use to handle the relationship between the seller and the buyer, characterized by the payment by instalments of the price, deferred in multiple years.

Each agreement has its own features, and is subject to a different set of rules, therefore parts can choose which one to use, according to their own specific needs.