Deferral on the payment of rent for self-employed workers and SMES

Commercial

On 23 April, Royal Decree-Law 15/2020 on supplementary urgent measures to support the economy and employment entered into force, which regulates the requirements to be met by self-employed persons and SMEs in order to request a moratorium on the payment of rent for the premises they have leased for the development of their activity.

First, the tenant is required to be a natural or legal person in a lease agreement defined as “for use other than housing” in accordance with Article 3 of the LAU – leases concluded for the purpose of carrying out an industrial, commercial, artisanal, professional, recreational, cultural or teaching activity – or industry.

And secondly, those self-employed and SMEs which meet the following requirements may apply for this moratorium:

  • Their business activity has been suspended as a result of the state of alarm or by orders issued by the competent authority.

  • In the event that its activity is not directly suspended, a justification of the reduction in the turnover of the calendar month to which the deferral is requested, of at least 75 %, in relation to the average monthly invoicing of the quarter to which the month concerned relates in the previous year.

  • In the case of a contract relating to the activity carried out by a self-employed person, it shall be essential to be affiliated and in a situation of discharge, on the date of the declaration of alarm, in the Special Social Security Scheme of self-employed or self-employed workers or in the Special Social Security Scheme for Seafarers or, where appropriate, in one of the alternative mutual societies of RETA.

  • In the case of a contract relating to the activity carried out by a SME, the requirement is that they do not exceed the limits set out in Article 257.1 of Royal Legislative Decree 1/2010, of 2 July, approving the consolidated text of the Capital Corporations Act (2 of the 3 circumstances according to that article): (i) that the total assets do not exceed four million euros (ii) that the net amount of their annual turnover does not exceed eight million euro and/or (iii) that the average number of employees employed during the financial year is not more than fifty.

The rule establishes that the deadline to apply for a moratorium is 1 month from its enforcement, 23 April 2020, as it enters into force the day following its publication in the BOE.

In order to certify the requirements, the lessor shall be provided with documentation attesting to the reduction of activity or suspension of activity:

  • To prove the reduction of activity: Presentation of a responsible statement which justifies, on the basis of accounting information and revenue and expenditure, the reduction of monthly billing by at least 75 % in relation to the average monthly turnover in the same quarter of the previous year. When the lessor requires so, the tenant will have to show his accounting books in order to prove the reduction of the activity.

  • To prove the suspension of the activity: Certificate issued by the State Tax Administration Agency or the competent body of the Autonomous Community, where appropriate, on the basis of the declaration of cessation of activity declared by the person concerned.

As to the conditions for requesting and agreeing to the moratorium, there is some difference whether the lessor is a great holder o not:

  • If the landlords are in the “GREAT HOLDERS” category (a natural or legal person who owns more than 10 urban buildings, excluding garages and storage rooms, or a constructed area of more than 1,500 m²), the conditions are as follows:

    • A moratorium on the payment of rent may be requested.

    • The application must be accepted by the lessor provided that an agreement on a moratorium or reduction of income has not already been reached between the two parties.

    • The moratorium will be applied automatically.

    • It shall affect the period of time of the state of alarm and its extensions and the subsequent monthly payments, which may be extended one by one, if that period is insufficient in relation to the impact caused by COVID-19. In no case may they exceed four months.

    • The rent shall be postponed, without penalty or accrual of interest, from the following monthly rental rent, by splitting the quotas within a period of two years, which will be counted from the moment when the alarm is exceeded or after the end of the period of the four months mentioned, and always within the term of validity of the lease or any of its extensions.

  • In the event that landlords are NOT GREAT HOLDERS:

    • Temporary and extraordinary deferral in the rent payment may be requested provided that such deferral or a reduction has not been previously agreed by both parties on a voluntary basis.

    • Under the agreement, the parties may dispose of the security deposit which may be used for the payment, total or in part, of the monthly rent. In this case, the lessee shall replenish the amount of the security deposit provided within one year of the conclusion of the agreement or within the remaining term of the contract, if this period is less than one year.

In any case, the rule contains a warning to be taken into account, that tenants who have benefited from the temporary and extraordinary deferral in the payment of the income without satisfying the established requirements, shall be liable for any damages that may have occurred, as well as for all expenses arising from the application of these exceptional measures, without prejudice to the responsibilities of another order to which the conduct might give rise.


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