GIM Legal and BonelliErede in the opening of Illumina's European solution center in Milan

Illumina

Illumina's European Solution Center will be in the Mind Innovation District (former Expo 2015 area) of Milan

 

Illumina Inc., an American company listed on Nasdaq and specialized in gene sequencing, will open its Italian headquarters in Milan in the Mind Innovation District (formerly the Expo 2015 area), an innovation district where the new frontiers of technology and bio-sciences will converge. Lendlease - Australian multinational listed on the Australian Stock Exchange, leader in the infrastructure and real estate sector, specializing in the development of urban areas - is developing.

The Illumina headquarters will host the Californian company's solution center and research hub in Europe, with activities that will focus on genome and genomic sequencing applications.

Illumina was assisted by GIM Legal with a multidisciplinary team made up of the Partner Alessandro Matteini, by the Senior Associate Marco Conti and by the Associate Maria Chiara Zonfrilli.

Lendlease was assisted by BonelliErede with a team made up of the partner Johannes Karner, member of the Real Estate Focus Team, and its associates Francesca Del Giudice Greco e Giulia Vannoni.

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Non-residential properties: free conventional determination of the rent

La Court of Cassation, with ordinance no. 33884 of 12 November 2021, affirmed a principle of law on the subject of free conventional determination of the rent for buildings intended for use other than residential use.

The case submitted to the examination of the Ermellini originates from the disputed legitimacy of a revision agreement (increasing) of the rent originally agreed between the parties in the context of a lease contract for use other than residential use, for violation of the limits set from Law no. 392/1978, to articles 32 and 79.

In this regard, the Supreme Court found the complaint raised by the tenant regarding the illegitimacy of the rent revision agreement to be unfounded, recalling the principle, recently expressed by the same (albeit in a different ruling regarding the so-called "keying" of the rent lease), by virtue of which, in the matter of leases for use other than residential use, the agreement of a differentiated and increasing rent for successive fractions of time must be considered legitimate, unless it emerges from the text of the agreement (or from extra-textual elements ) the intention of the parties to pursue the sole purpose of neutralizing the effects of the monetary devaluation, in circumvention of the limits imposed by art. 32 of Law no. 392/1978.

More specifically, in accordance with this principle, where the parties have not bound the differentiated determination of the fee to the use of objective and predetermined elements, capable of influencing the economic equilibrium of the relationship (independently of the annual variations of the purchasing power of the currency), the relative agreement must be considered void pursuant to the combined provisions of art. 32 and 79 of Law 392/1978.

On the basis of this approach and also taking into account the fact that the rental value of a property for commercial use may vary depending on extrinsic factors (ie. urban development, provision of major services, etc.) which cannot be forbidden for contracting parties to take into account for the purposes of (re) determining the consideration, the Supreme Court has stated the following principle of law: "In accordance with the general principle of the free conventional determination of the rent for buildings intended for use other than residential use, they must be considered legitimate, both the pact by which the parties, upon conclusion of the contract, predetermine the fee in a differentiated and increasing measure for successive fractions of time over the course of the relationship; as much as the subsequent agreement by which the parties agree by mutual agreement, during the course of the relationship, to establish a measure of the fee different from the one originally established; lthe legitimacy of these agreements (initial or subsequent) must however be excluded where it appears (from the text of the agreement or from extra-textual elements) that the parties have in reality surreptitiously pursued the aim of neutralizing only the effects of the monetary devaluation, circumventing the limits quantities set by Law no. 392 of 1978, art. 32. "

In conclusion, it will be up to the trial judge, during the negotiation interpretation, to ascertain the real will of the contracting parties and then evaluate whether by means of the formula adopted for the determination of differentiated and increasing rents for fractions of time, or through the stipulation of agreements modifying the fee during the course of the relationship, the parties have intended to pursue the aim of neutralizing the negative effects of the currency devaluation or have intended to give the lessor, in a dynamic measure, greater fruitfulness in real terms of the transferred use of the property.

Court of Cassation Order 33884 of 12.11.2021

 

 

GIM Legal wins the tender to assist Euregio Plus SGR in starting a real estate investment fund for the hospitality sector in Trentino Alto Adige

GIM Legal, law firm specializing in the sectors financial services e real estate market, was awarded the tender to support, as legal and regulatory advisor, Euregio Plus SGR SpA, an in-house company of the Autonomous Province of Bolzano and the Trentino-Alto Adige Region, in the promotion and establishment of real estate alternative investment fund aimed at supporting the tourist accommodation sector in Alto Adige / Südtirol and in Trentino with a collection target of up to Euro 100.000.000.

“We have been awarded this tender - he says Sergio Beretta, Operations Partner of the firm - is a source of great pride and we are happy to contribute to the launch of a project to support a sector, the hospitality sector, so strategic for our economy but hard hit by Covid-19 ".

“The revival of the Italian real estate market - he concludes Alessandro Matteini, Partner of GIM Legal and manager of the Real Estate area of ​​the Firm - requires innovative and alternative aid tools for the benefit of the tourism industry in order to adapt the reference sector, both from a corporate and real estate point of view, to the international. This initiative will give a significant boost to the well-being of the territory and the supply chain, creating employment and helping to attract new capital ”.

Vincenzo Perri appointed Partner

GIM Legal STA, a firm specializing in legal and regulatory advice in the real estate, banking & finance, insurance and capital market sectors, announces the appointment to Partner of Avv. Vincenzo Perri.

The lawyer Vincenzo Perri joined GIM Legal as Of Counsel in 2019, where he deals with Real Estate and coordinates the NPL unit.

She has twenty years of experience in providing consultancy, out-of-court assistance and legal aid activities in the field of corporate law, civil real estate law, with particular attention to real estate contracts (rentals and sales) both in the preparatory and study phase both in the pathology phase of contracts, with legal aid before the competent judicial bodies.

The lawyer Perri also has an important experience in consulting and supporting the overcoming of debt situations of individuals and companies with the ability to intervene in the execution, both movable and real estate. The lawyer Perri also deals with labor law, civil liability and project finance in the field of administrative law.

“We are very satisfied with how the professionals who joined us in the GIM Legal project are demonstrating a constant commitment and the contribution not only of skills, but also of ideas. Vincenzo Perri is for us one of the reference points for Real estate and for the NPL practice and we are sure that entering the partnership will only further consolidate and expand the presence on the market of dedicated teams ", commented Luigi Rizzi, Managing Partner.

Alessandro Matteini new equity partner and Real Estate manager

GIM Legal STA, a firm specialized in legal and regulatory assistance and advice in the fields of Finance and Real Estate, further strengthens its team with the entry of Avv. Alessandro Matteini, from Baker Mckenzie, who enters the role of equity partner and new head of the studio's real estate department.

Alessandro Matteini is a professional expert in real estate law and finance, with skills and experience in the transactional area, including cross-border, and restructuring, gained in leading national and international law firms where he held the role of partner and managed assignments of primary importance for the benefit of Italian and foreign customers.

Together with Avv. Matteini enters the studio, also from Baker Mckenzie, Mara Natascha Penasa, as junior member.

Thanks to these new entries, GIM Legal's Real Estate practice now has 9 dedicated professionals, active in the offices of Milan and Rome.

"We are very satisfied with the results that the study is having in the real estate sector," he explains Luigi Rizzi, Managing Partner, “however, we are certain that with the arrival of Alessandro, who will have the role of coordinating the practice and boosting the growth strategies of the studio, we will be able to give an even more sophisticated and top service to our customers ".

Our business model which is already recognized by the market as being particularly innovative in its approach and working method, "he continues Sergio Beretta, Operations Partner, "confirms once again the ability of GIM Legal to attract the best talents to provide customers with a high quality service".

Covid-19 pandemic and pending legal relations. Brief reflections on commercial leases and business leases

Covid-19

Pandemic from Covid-19 and pending legal reports

 

A) The general principles foreseen by the Civil Code

The emergency health situation caused by the spread of the epidemic from Covid -19 has led governments all over the world to introduce very quickly measures, immediately applicable, of social distancing, which include the mandatory blocking of all economic activities that do not relate to the provision of cc.dd services essential and the prohibition for individuals to move without a valid reason attributable to basic needs.

In our country, these measures, contained in national and regional regulatory provisions, have had a direct impact on the execution of contracts in progress, hindering their correct and timely execution and exposing the parties to the risk of contractual breach.

The question was therefore asked whether, and under what conditions, a contractual breach resulting from these regulatory measures or, in any case, from the Covid-19 pandemic, could release the defaulting party from liability.

(i) The debtor's liability for non-performance (Article 1218 of the Civil Code)

In order to answer the question, it must first be stated that the general principle in Italian law, dictated by art. 1218 of the Civil Code, mainly for the so-called bonds of result, according to which the debtor who does not exactly perform the performance due is always responsible for the failure unless he proves that the non-fulfillment or the delay in the fulfillment was determined by the impossibility of the performance deriving from a cause not attributable to him.

(ii) The causes of exclusion of the debtor's liability

The causes of exemption from liability are those that derive from objective, extraordinary, unforeseeable events and extraneous to the sphere of the debtor, such as to objectively and insurmountable the execution of the due service (traditionally, force majeure, the CD. factum principis - order or prohibition of the authority - the fortuitous event or the fact of the creditor).

International practice also contributes to the definition of "force majeure" (in particular, the Vienna Convention of 11 April 1980 and the "ICC Clause"Of the International Chamber of Commerce), for which epidemics, as well as catastrophes, wars and insurrections, are among the causes of force majeure capable of justifying non-fulfillment or delaying fulfillment.

 

B) The application of the general principles of the Civil Code to the case of the Covid-19 pandemic

It is therefore necessary to establish whether, and how, in the light of the principles set out in paragraph A above, the emergency caused by the pandemic and the issuing of government measures that ordered the temporary closure of production and commercial activities considered non-essential can qualify as causes for exemption from liability.

The answer to the question is positive, the following causes of exemption from liability being applicable to the specific case:

  • Factum principis

There seems no doubt that the restrictive measures can be traced back to the so-called factum principis when the default has been caused directly from the enactment of the restrictive measures against Covid-19. In these cases, therefore, the exemption from liability operates and consequently - in the absence of specific contractual provisions - the obligation is extinguished for unexpected impossibility of performance in application of the general discipline referred to in articles 1256 et seq. of the Civil Code ("Resolution due to the impossibility of occurrence");

  • "Major force"

In the emergency situation caused by the Covid-19 pandemic in addition to the cd. factum principis other elements of exclusion of the debtor's liability for non-fulfillment have also emerged, such as the cause of "force majeure" (understood as an objective, extraordinary and unforeseeable event) such as to make the performance impossible for reasons not attributable to the person owing it perform (think of the case in which the supply of a good or a service within a deadline agreed as essential for the subject who must receive it has been made impossible by the blocking of transport). International practice contributes to the definition of "force majeure" (in particular, the Vienna Convention of 11 April 1980 and the "ICC Clause"Of the International Chamber of Commerce), for which epidemics, as well as catastrophes, wars and insurrections, are among the causes of force majeure capable of justifying non-fulfillment or delaying fulfillment;

  • Excessive burden occurred

It is also possible that the extraordinary and unpredictable events discussed are likely to cause, in contracts with continuous or deferred execution (think, for example, leasing) an imbalance in the contractual economic structure, exorbitant from the normal alea of ​​the contract, which makes the performance excessively burdensome and unsustainable for one of the parties (think of the hypothesis of the tenant defaulting on the obligation to pay a fee that is no longer sustainable due to an unforeseeable contraction of the revenues planned at the time of the conclusion of the contract ).

Well also in this case the Italian law provides protection in favor of the defaulting party making it possible to remedy the termination of the contract in favor of the disadvantaged party in application of articles 1467 and ss. of the Civil Code ("Resolution for Excessive Burden"). However, termination can be avoided by the creditor by offering a fair modification of the contractual conditions, as will be clarified below.

Confirmation that the guidelines to be followed for the correct management of contractual relationships are those set out above can also be deduced from the emergency legislation itself and in particular - according to doctrine - from art. 91 of the DL n. 18 of 17.3.2020, converted with amendments into Law no. 27 of 24.4.2020 ("Cura Italia Decree"), In which it is specified that compliance with the containment measures established in the decree itself is always" assessed "for the purposes of excluding, pursuant to articles 1218 and 1223 of the Civil Code, the liability of the debtor, also in relation to the application of any forfeiture or penalties related to late or omitted payments.

 

C) The principles of good faith and fairness in the execution of the contractual relationship

However, the termination of the obligation by termination of the contract may not be considered desirable by one or both parties. In this case, it is necessary to consider that the Civil Code offers the parties the opportunity to do everything in their power to "save" the relationship and favor the preservation of the contract in execution of the principles of good faith and fairness in the execution of the contract sanctioned by articles 1175 and 1176 and then by art. 1375 of the Civil Code.

The legal institutions referred to in the following paragraphs are also expressions of these principles.

 

D) Corrective measures to remedy the extinction of the obligation: the general principle of "retention of the contract".

If there is an exempting cause of liability, the breach is innocent and the legislator, in consideration of this, prepares the remedy for the termination of the contract due to impossibility of occurrence. However, this is one extreme ratio since, where possible, the legislator takes into consideration the possibility that the parties aim to maintain, by correcting them, the effects of the contract. The provisions of the Civil Code governing them must be read in this direction late or partial fulfillment or the change according to fairness of the contractual conditions. In particular, art. 1256, 2nd paragraph, of the Civil Code states that, if the impossibility is only temporary, the debtor's exemption from liability is limited to the delay and implicitly states that the obligation to provide the service remains firm and that the fulfillment becomes due at the the adverse circumstances that generated the impossibility of performing the service within the established deadline will cease.

Furthermore, the parties' obligation to verify that partial fulfillment is not possible remains unaffected; in this case, the debtor could free himself from the obligation by performing the service for the part that remained possible (article 1258 of the Civil Code), and the other party would be entitled to the corresponding reduction in the service due by it or to the withdrawal from the contract in lack of an appreciable interest in the fulfillment (article 1464 of the Civil Code), or a fair modification of the conditions of the contract pursuant to art. 1467 of the third paragraph of the Civil Code.

 

II - Brief reflections on commercial leases and business leases.

 

A) Lease contracts

Commercial leases and company leases fall into the category of long-term contracts, in particular for continuous execution, which, as mentioned above, are directly involved in the impact of the health emergency.

It is common practice to provide in this type of contract a detailed regulation of cases of force majeure, upon the occurrence of which the tenant can be entitled to suspend or reduce the rent. In any case, the effects on the contract must also be assessed in the light of the general principles set out in the previous paragraph.

In particular, it is believed that in the event that the tenant has not been able to use the leased spaces, as a direct recipient of the closure measures imposed by the authority (factum principis), the supervening impossibility regulation is applicable temporary and partial (considering that the enjoyment of the property remains in part given that the tenant is unable to return the property because it is occupied by the assets intended for the operation of the company) of performance.

In the present case, the factum principis makes temporarily impossible the obligation of the lessor to "maintain" the intended use of the leased property sanctioned by art. 1575, lett. 2, of the Civil Code (and therefore releases it from the relative service).

In the face of this situation, it is believed that the tenant who has given appropriate notice in writing to the lessor is exempted - as long as the temporary impossibility persists - from the obligation to pay the fees during the period of closure of his business, without being able to be liable for the breach but cannot impose on the lessor a unilateral reduction of the rent, or the remission of the same, for the period in which the commercial activity carried out in the leased premises has ceased.

However, the provisions of art. 1464 of the Civil Code according to which when the performance of a party has become only partially impossible the other party has the right to a corresponding reduction in the performance due by it, and can also withdraw from the contract if it has no appreciable interest in the partial fulfillment.

Among other things, this provision, directly giving the right to a reduction of the rent (to the extent ascertainable in court in the event of non-sharing with the landlord), does not give the tenant the risk of unwanted termination.

On the other hand, a topic that would require independent study concerns the question of whether, among the remedies available to the tenant, they can indifferently invoke, at their option, the partial impossibility or excessive burden that arises.

Apparently they oppose both the art. 91 of the Cura Italia Decree is the measure of support to companies (in some ways censurable) introduced by art. 65 of the so-called Cura Italia decree, consisting of the governmental recognition of a tax credit for properties falling within the cadastral category C / 1 (shops and shops), equal to 60% of the amount of the rent for the month of March 2020, which belongs only to tenants who have already paid the rent.

But general and special rules can be well coordinated with each other avoiding a risk of conflict. Given that the support measures are necessarily standardized and temporary it is possible, in fact, that the same are unsuitable to make up for the "damage" resulting from the partial impossibility. The tenant will therefore have the burden of availing himself of the benefits of the law and requesting that the reduction of his performance be made net of the benefits received. Failing that, it will be in the interest of the lessor to plead the failure to make recourse to the benefits of the law by the tenant to achieve, in accordance with the principles expressed in art. 1227 of the Civil Code, a containment of the reduction in benefits.

Nor can it be excluded that the situation of general economic recession caused by the pandemic from Covid-19 determines, in a medium-long term context, a crisis situation such for the entrepreneur to make the obligation to pay in all or part of the fee. In these cases, the tenant could be allowed to use, where the conditions exist, the "typical" remedy of withdrawal for serious reasons provided for non-residential leases by art. 27, 8th paragraph of L 392/78, which includes commercial leases, or the general remedy of the Resolution for Excessive Burden pursuant to art. 1467 of the Civil Code.

With regard to the first instrument, it is known that in non-residential leases the tenant can withdraw from the contract at any time, if "serious reasons" occur, with at least six months' notice to be communicated by registered letter. According to constant jurisprudence, "serious reasons" mean all those facts unrelated to the will of the tenant, unforeseeable and occurring at the conclusion of the contract, such as to make the continuation of the relationship extremely burdensome and to significantly affect the conductor's activity.

In the presence of these factual circumstances, the tenant can therefore free himself from the contractual bond, it is intended after judicial assessment in the event of the lessor's contestation of the right of withdrawal exercised by the tenant and in any case with the obligation to comply with the six-month notice, with consequent duty to pay the rent for the entire notice period.

It should also be noted that such a remedy may not be operable by the tenants of the so-called large leases (i.e. non-residential leases that provide for annual rents higher than Euro 250.000 introduced by art.18 of Legislative Decree 133/2014, converted with amendments by L. 164/2014) where, at the time of the conclusion of the contract, this right had been contractually excluded, as allowed by the founding legislation.

In any case, the tools reviewed above remain available for all non-residential leases, without exception. On a practical level, the termination of the lease contract may, however, not be of interest to the parties who could legitimately negotiate a suitable contractual modification (as desired by the same art.1467 of the Civil Code with a view to maintaining the contractual relationship) aimed at rebalancing the contractual economic structure (for example by means of an adequate reduction of the rent or suspension for a specific period).

 

B) Company rental.

The lease of the company proposes problems similar to those that arise for the leases as regards the obligation to pay the agreed rent on the tenant.

Therefore, the same general principles already examined in relation to commercial lease agreements regarding the Termination of Impossibility (Partial), apply, without prejudice to the exclusion of the withdrawal for serious reasons, as a typical remedy for leases for non-residential use only.

As for the Resolution for Excessive Burden, instead, the special rule referred to in art. 1623 of the Civil Code dictated on the subject of a company lease contract, which governs the behavior of the parties in the event of subsequent modifications of the contractual relationship concerning the rental of productive property. The law provides that in the event of a significant modification of the relationship, due to legal provisions or provisions of the authority concerning production management, an increase or a reduction in the rent may be required, or, according to the circumstances, the dissolution of the contract. The rule is explanatory of the general principle contained in art. 1467 of the Civil Code but does not reproduce the rules, because it allows both parties to choose whether to act for the modification of the fee or the dissolution of the relationship without depending on the "counter-move" of the counterpart.

 

III - Conclusions.

The regulatory framework outlined by the principles of law examined in the preceding paragraphs leads us to believe (and in fact this is already happening) that pending commercial lease and company rental relationships affected by the Covid-19 pandemic will find greater application in practice. , those instruments of protection deriving from the retention obligations of contracts and of good faith and contractual correctness which incentivize the parties to renegotiate the contractual conditions, also with a view to responsibility, which allows to more effectively counter the serious economic and social emergency caused from the Covid-19 pandemic.

And probably the current situation will represent the "general rehearsal" of what will happen when the announced change to the Civil Code takes place (now in the state of the delegated bill) in the sense that the "right of the parties to contracts that have become excessively burdensome due to causes exceptional and unforeseeable, to demand their renegotiation in good faith, or in the event of no agreement, to ask in court for the adjustment of the contractual conditions so that the proportion between the services originally agreed by the parties is restored ". Not to mention that it would be reasonable to expect that, given the situation, this legislation could see the light - possibly in non-general terms - already in the abundant current emergency legislation.

 

Anna Maria Schirru

GIM Legal participated in the 27th Real Estate Scenarios forum

Friday 13 and Saturday 14 September 2019, at the Grand Hotel Miramare in Santa Margherita Ligure, GIM Legal STA participated in the 27esimo Scenarios Real Estate Forum, two days dedicated to the analysis and interpretation of the latest trends in the Italian real estate market.

The event, organized by Real Estate Scenarios, was attended by representatives of the institutions, stakeholders and reference figures of the major companies and realities in the Italian real estate sector.

This important annual event, dedicated to Real Estate professionals and operators, examined the results achieved by the Italian real estate market by comparing them with those obtained at European level. The forum, always attentive also to social issues, has dedicated the focus of this edition to the relationship between cities and women.

GIM Legal nominated at the Top Legal Awards among the best firms of the year for Real Estate

Thursday 16 Maggio, in Milan at Palazzo Mezzanotte, headquarters of the Italian Stock Exchange, GIM Legal STA, a business firm specializing in legal and regulatory consultancy for clients operating in the financial, insurance, capital markets and real estate sectors, the TopLegal Industry Awards 2019.

TopLegal, thanks to the collaboration with a large jury of experts, with this award wants to highlight the excellences that have distinguished themselves, between law firms and professionals, during the year for the various legal industry sectors.

GIM Legal STA, after being named among the best studies of the year for Innovation in 2018, has been selected among the best studies of the year Real Estate and his Managing Partner, Luigi Rizzi, is one of the best Fintech professionals.