Establishment of new measures to support the tourism, hotel and catering and commerce sector.
It should be remembered that on 22 December 2020 Royal Decree-Law 35/2020 on urgent measures to support the tourism, hotel and catering and commerce sector and in tax matters was approved, coming into force on the day immediately following its publication in the Official State Gazette, and therefore mandatory as of 24 December.
The Royal Decree-Law establishes, among others, measures to reduce the rental costs borne by companies and the self-employed, in taxation, labour and social security matters.
In relation to leasing contracts, in the absence of agreement between the parties, when the lessor is a company or public entity or a large tenant, understood as a natural or legal person that owns more than ten urban properties, excluding garages and storage rooms, or a built surface area of more than 1,500 m2, the lessee may, before 31 January 2021, request one of the following alternatives from the lessor:
a) A 50% reduction of the rent (not expenses) for the duration of the state of alarm declared by Royal Decree 926/2020, of 25 October, declaring a state of alarm to contain the spread of infections caused by SARS-CoV-2 ("RD 926/2020") and its extensions, and may be extended to the following monthly payments, up to a maximum of four months.
b) A moratorium on the payment of rent (not expenses) that will apply for the duration of the state of alarm declared by RD 926/2020 and its extensions, and may be extended to subsequent monthly payments, up to a maximum of four months. This rent will be deferred, without penalty or accrual of interest.
The deferred payment of rent may be made for a period of two years from the end of the moratorium, and always within the period during which the rental contract or any of its extensions continues to be in force, with the deferred amounts being distributed proportionally throughout the period.
The lessor must expressly communicate his decision to the lessee, within a maximum period of seven working days after the lessee has made his request by a reliable means. From the following monthly rental period at the end of this period, the measure chosen by the lessor from among those described will be automatically applied, or, in the absence of express communication within the period, the measure requested by the lessee.
In the event that the parties have reached an agreement on the reduction of the rent or the moratorium on its payment that affects only part of the period covered by the state of alarm declared by RD 926/2020 and its extensions, as well as a maximum of four months after the end of the last extension of said state of alarm, it will be possible to apply the measures indicated, but the corresponding measure will be applied only for the part of the period not affected by the agreement of the parties.
The provisions of this section shall not apply when the lessor is in insolvency proceedings or when, as a result of the application of the measures set out above, the lessor is likely to become insolvent or is facing imminent or current insolvency, in accordance with the provisions of Royal Legislative Decree 1/2020, of 5 May, which approves the revised text of the Insolvency Act, and the lessor seeking the application of this exception must prove that he is in one of the situations set out above.
When the lessor is a person other than the aforementioned person, the lessee may request from the lessor, before 31 January 2021, a temporary and extraordinary deferment in the payment of the rent, provided that such deferment or a reduction in the rent has not been agreed by both parties on a voluntary basis.
Only within the framework of the aforementioned agreement, the parties may freely dispose of the rental deposit, which may be used for the full or partial payment of some or several monthly instalments of the rent. In the event that all or part of the deposit is used, the lessee must replace the amount of the deposit within one year of the conclusion of the agreement or within the remaining term of the contract, if this term is less than one year.
For the application of the aforementioned measures, self-employed workers and SMEs renting property for use other than as a dwelling must meet the following requirements:
a) In the case of self-employed workers, they must be affiliated and registered, on the date of the declaration of the state of alarm by Royal Decree 926/2020, in the Special Social Security Scheme for Self-Employed Workers or in the Special Social Security Scheme for Sea Workers or, where applicable, in one of the Mutual Societies replacing the RETA.
b) In the case of SMEs, that the limits established in article 257.1 of the Capital Companies Act, which establishes the circumstances that allow the balance sheet and statement of changes in equity to be drawn up in abbreviated form, are not exceeded.
For both the self-employed and SMEs, whose activity has been suspended as a result of the entry into force of Royal Decree 926/2020, or by orders issued by the competent Authority and the competent Authorities delegated under the aforementioned Royal Decree.
For both self-employed workers and SMEs, in the event that their activity is not directly suspended as a result of the entry into force of RD 926/2020, proof must be provided of a reduction of at least 75% in turnover in the calendar month prior to that in which the deferral or reduction of income is requested, in relation to the average monthly turnover of the quarter to which the said month belongs in relation to the previous year.
Compliance with the established requirements shall be accredited by the lessee to the lessor by means of the presentation of the following documentation:
a) The reduction in activity shall be accredited initially by means of the presentation of a responsible declaration in which, on the basis of the accounting and income and expenditure information, the reduction of the monthly turnover by at least 75 percent, in relation to the average monthly turnover of the same quarter of the previous year, is stated. In any case, when the lessor so requires, the lessee must show his accounting books to the lessor to prove the reduction in activity.
b) The suspension of activity will be accredited by means of a certificate issued by the AEAT or by the competent body for processing the extraordinary cessation of activity regulated in Article 17 of Royal Decree-Law 8/2020, of 17 March, on extraordinary urgent measures to deal with the economic and social impact of COVID-19, where applicable, on the basis of the declaration of cessation of activity declared by the interested party.
Finally, tenants who have benefited from the reduction and the temporary and extraordinary deferment in the payment of rent without meeting the established requirements will be liable for any damages and losses that may have occurred, as well as for all the expenses generated by the application of these exceptional measures, without prejudice to any other responsibilities to which their conduct may give rise.
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