Last Wednesday’s Official State Gazette published Royal Decree Law 15/2020 approving, among others, extraordinary measures to modulate the payment of rents for business and/or industrial premises used by freelancers, professionals and SMEs.
In order to benefit from the moratorium on the payment of income, the recipients must meet the following requirements: in the case of self-employed or professionals, they must be registered in the RETA or substitute mutual insurance company on March 14(when the state of alarm was declared) and have suffered the suspension of their activity as a result of this exceptional period of alarm, or a 75% drop in their turnover in the month prior to the month in which the deferral is requested with respect to the average of the corresponding quarter of the previous year.
In the case of small and medium-sized companies (SMEs), the requirements are the same, although a size limit is established in accordance with the Capital Companies Law, so that only those SMEs that have met, at the closing date of each of two consecutive fiscal years, at least two of the following circumstances will be eligible for the moratorium: that the total asset items do not exceed four million euros: that the net annual turnover does not exceed eight million euros, and that the average number of employees employed during the year does not exceed fifty.
The agreed moratorium, as is the case with the measures adopted in the area of leasing for residential use, has two different regulations depending on who is the lessor of the property. In the case of large landlords (individuals or legal entities owning more than 10 urban properties, excluding garages and storage rooms, or a built-up area of more than 1,500 m2), tenants may apply within one month (one month) for the moratorium to be lifted. until May 23, 2020) the granting of a moratorium on the payment of rent, which will be applied automatically and will affect the period of time that the state of alarm lasts, extendable up to a maximum of four months provided that the initial period “was insufficient in relation to the impact of covid-19“According to the BOE. The deferral will be without any type of penalty or interest, and may be returned, in installments, during the two years following the conclusion of the moratorium.
When the lessor is a small landlord, within one month from the entry into force of this new Royal Decree (until May 23, 2020) it will be possible to request the “temporary and extraordinary postponement in the payment of the rent provided that such postponement or a reduction of the rent had not been agreed by both parties on a voluntary basis”. In these cases the parties may freely dispose of the deposit for the total or partial payment of one or more monthly rent payments. When the deposit is disposed of in whole or in part, the lessee must replace it within one year from the execution of the agreement or within the remaining term of the contract, if it is less than one year.
In order to prove compliance with the above requirements, the tenant must prove to the lessor that he/she is in a position to request the moratorium. In case of having suffered a reduction of activity, he must present a responsible declaration in which, based on the accounting information and of income and expenses, the reduction of the monthly invoicing in, at least, 75%, in relation to the monthly average invoicing of the same quarter of the previous year is stated. In addition, when the lessor so requests, the lessor shall be obliged to show its accounting books. In the event of having suffered a suspension of activity, the SME or self-employed person must prove this by means of a certificate issued by the Tax Agency or the competent body of the autonomous community on the basis of the declaration of cessation of activity declared by the interested party.
In the event of an improper application of the moratorium, tenants who have benefited from the temporary and extraordinary deferral in the payment of rent without meeting the requirements will be liable for any damages that may have occurred, as well as for all expenses generated by the application of these exceptional measures.
Pablo Solá Martí