News Superbonus 110%: The Study No. 27-2021/T of the Notary

The difficult definition of "condominium"

The Commission for Tax Studies of the National Council of Notaries has approved Study No. 27-2021/T on Superbonus 110%.

Among the issues addressed and analyzed in this work, it is worth noting that relating to the characteristics that properties must have to be qualified as “condominium” with the right to the tax benefits provided by the so-called Decreto Rilancio (Decree 34 of May 19, 2020) converted into Law 77/2020 of July 17, 2020.

More precisely, the Notary addresses, with the aforementioned Study, the critical issues due to the restrictive interpretation of the Revenue Agency (AE) regarding the definition of “condominium”.

In this regard, the AE refers exclusively to the definition of condominium provided by the rules of the Civil Code in force, which exclude this case if there is a single owner of the property, albeit divided into several units.

In this case, it seems difficult to refer to the “common parts” which are the basis on which the possibility of access to the tax benefit is built, with the so-called “driving” interventions, which are distinguished from those “driven”, normally carried out on the individual apartments units of the various condominiums.

It follows that the AE favors a “subjective” view of the condominium rather than placing the emphasis on an “objective” assessment focused on the common parts of a building, which also exist when the building belongs to a single subject. If, for example, a person is the sole owner of a building consisting of eight real estate units, although there are in fact common parts of the building, the lack of a legal situation qualifying as a condominium would determine, in the opinion of the Revenue Agency, the impossibility of accessing the superbonus.

At this point, the Notary Study focuses on identifying possible solutions to the case of the sole owner of a building complex who wishes to have access to the 110% superbonus.

Thus, according to the opinion of the Notary, in the case of a single owner (physical or legal) of an entire building, in order to create a condominium, it will be necessary and sufficient that this person transfers, for any reason, one or more apartments to another person.

Moreover, with the new Budget Law 2021, the legislator has provided that the superbonus can also be accessed for interventions on buildings consisting of two to four real estate units separately stacked, even if owned by a single owner or co-owned by several people. According to the above-mentioned study, it seems plausible, even if there is no literal indication, that the appurtenances, for this specific purpose, should not be calculated.

Taking into account this last disposition, in order to obtain the tax bonus, it seems possible, before the beginning of the works, to proceed to an amalgamation between the housing units exceeding the normative limit, for example, in case of five units, it would be necessary to amalgamate two of them, in order to total four housing units.

On this point, it is worth pointing out that this solution, can be considered legitimate only if it is supported by a suitable enabling building measure, have been performed and completed the work of merging and has been made the cadastral change before the start of work that give access to superbonus.