Is it feasible to transfer a rented property for no charge?
Imagine you rent a comfortable apartment, customize it to your liking, and invest care into every corner. Then, life changes, and you think about giving it to a friend or family member without charge. But is this legally feasible?
What is a gratuitous use contract?
Per Article 1803 of the Italian Civil Code, a gratuitous use agreement (comodato d'uso) allows one person (the comodant) to lend another (the comodatary) movable or immovable property for a set time or specific purpose. Once this period ends, the property must be returned.
What if you want to offer a rented apartment for free use? Can you manage it as if it were your own?
Can a lessee sublet a property?
In Italy, a lessee (tenant) can sublet part of an apartment, but certain conditions must be met. If the lease doesn't specifically ban subletting, informing the property owner (landlord) and providing the subtenant's details suffices.
For a full transfer of housing through sublease, written consent from the landlord is needed. This is governed by Article 2 of Law No. 392 from July 27, 1978, which indicates:
"The tenant cannot sublease the property entirely or assign the lease to third parties without the landlord's approval. Unless stated otherwise, the tenant may sublease part of the property by notifying the landlord via registered letter, specifying the subtenant's name, agreement term, and rented premises."
Is it feasible to transfer a rental for gratis use?
Since a gratuitous use agreement by definition doesn't entail payment, can rented property be transferred this way?
The same rules as subletting apply:
If the rental agreement doesn’t forbid free use transfers, the tenant can proceed by informing the landlord.
If there’s a clause against subleasing and free use transfer, obtaining the landlord's written consent is necessary.
Otherwise, handing over the apartment to others without landlord approval breaches the contract and may result in eviction.
Can someone who received property for free use lease it out?
Suppose an owner gives an apartment under a gratuitous use contract to another. Can this new person lease it?
Article 1804 of the Italian Civil Code answers this: the comodatary must use the property strictly as per the agreement terms and cannot hand it over to others without the comodant’s authorization.
If they lease it without permission, the comodant can:
Demand immediate return of the property.
Claim compensation for damages.
Who should report rental income?
If a property given for free use is then rented out, who pays taxes on the earned income?
The law states that rental income must be declared under the property owner's name, regardless of who receives the payments. Thus, if the comodatary rents the apartment, the tax responsibility lies with the owner (comodant), as they remain the legal property owner.
This principle is outlined in Article 1, paragraph 2 of Legislative Decree No. 504/1992, asserting that property tax is paid by the owner, irrespective of the revenue recipient.
Conclusion
Transferring rented accommodation for free use is possible but requires thorough knowledge of the lease’s terms. In the absence of a ban, notifying the landlord suffices. If prohibited, consent is essential.
The same is true for the comodatary: if they wish to lease out the property received for use, the owner's approval is necessary.
Being legally informed can prevent negative outcomes, from contract cancellation to financial penalties.
