Searching for An Italian Will

/in /by

Where there’s a will …

Clients often engage the De Tullio law Firm team when they need assistance with winding-up an estate in Italy. Occasionally, we receive instruction to administer an estate where executors or beneficiaries have been searching for an Italian will, but are unable to locate it.

Sometimes, there may be a copy, but heirs cannot find the original. For example, the deceased may have told relatives that they had a will but, the heirs cannot find it amongst the deceased’s belongings.

Winding-up an Italian estate cannot begin until we find the original version of a last will. If a will doesn’t come to light, the decedent is intestate, in which case the State will decide how to divide the estate.

Types of Italian will

In Italy, we have three main types of will. The simplest type of will is a Holographic Will (Testamento Olografo). For this to be legally valid, the testator must hand write the document, date and sign it. No witnesses are necessary. It can either be deposited with a lawyer, notary or, be kept by the testator.

Then there is a Formal Will (Testamento Pubblico). A notary draws up the will upon the testator’s instructions. It requires a witness and is deposited with a notary until the testator’s death.

Thirdly, a Sealed or Secret Will (Testamento Segreto). This is hand written by the testator, placed in a sealed envelope and deposited with a notary until the testator’s death.

Get Your FREE Guide to Planning Your Inheritance in Italy

Our PDF guide explains the ins and outs of preparing your inheritance under Italian law

Download now

All three types of will must be in Italian to comply with Italian civil code. To avoid potentially significant difficulties following death of a testator, we recommend engaging a lawyer to assist you. In addition, we advise getting your will translated into your own language. This will avoid any potentially costly misinterpretation of your wishes later on.

Where to start searching for an Italian will?

If you believe someone had a will deposited with a notary, you can submit a request accompanied by the death certificate to the District Chamber of Notaries (Consiglio Notarile distrettuale). This organisation will forward a search request to all notaries within the area where the deceased was resident.

Searching for an Italian will at the General Will Registry

It is also advisable to submit a request to the General Will Register. This is part of the main notarial archive office which retains deeds and Wills deposited by notaries who have ceased business operations.

The General Will Registry Bureau (Registro Generale dei Testamenti) headquarters are at the Main Office of the Notary Archives (Ufficio Centrale degli Archivi Notarili) in Rome.

Through the General Will Registry Bureau you can find out if the deceased had a will in Italy or abroad. The Bureau can submit a request for a decedent’s will to the relevant authorities abroad if they are signatories to the International Basel Convention. Other than Italy, the countries which have signed the Basel Convention are: Belgium, Cyprus, Estonia, France, Lithuania, Luxembourg, Netherlands, Portugal, Spain, Turkey and Ukraine.

The General Will Registry holds the following records:

– Formal wills

– Sealed / Secret wills

– Holographic wills, formally held by a notary

– Publication of Holographic Wills, whether or not deposited with a notary

– Withdrawal of all types of will, formally deposited with a notary

– Suspension of previous arrangements by means of a new will

Finally …

At De Tullio Law Firm, we have over 55 years of expertise managing cross border succession and estate planning matters throughout Italy. Our firm is also a full member of STEP, the world’s leading association for trust and estate practitioners.

If you need any assistance searching for an Italian Will, please get in touch.

If you are looking for further information about the Italian inheritance process, you might find our comprehensive Italian Inheritance Guide helpful.

 

Avvocato – Frequently Asked Questions

/in , , , /by

What does avvocato mean?

The Italian word, avvocato, has three main equivalent terms in English: lawyer, solicitor, attorney.

How long does it take to become an avvocato?

What is an Avvocato?

Left: Giandomenico De Tullio. Managing Partner. Right Giovanni De Tullio. Founding Partner. De Tullio Law Firm.

The path to becoming an avvocato in Italy involves several years of study and internships.

Firstly, future lawyers need to complete a Bachelor’s Degree in law, (Laurea in Scienze Giuridiche), which takes three years.

Secondly, to proceed along the path towards practising law, students require a two-year post-graduate degree (Laurea Specialistica in Giurisprudenza) or, a further five-year Master’s Degree (Laurea a ciclo unico Magistrale in Giurisprudenza).

Thirdly, after attaining the aforementioned qualifications, an avvocato needs to complete a two-year internship at an established law firm.

Finally, in order to practice law, an avvocato must pass the Italian Bar Exam. After registering with the Italian Law Society (Consiglio dell’Ordine degli Avvocati), Italian lawyers can practice Italian law wherever they choose in Italy.

What is an Italian attorney’s scope of legal practice?

The legal competencies of a qualified avvocato are wide-ranging. They comprise all areas of the law: civil, criminal, labour, bankruptcy, financial, administrative, inheritance and succession cases. In addition an avvocato handles court trials and appeals.

Is an Italian avvocato subject to a code of conduct?

A strict ethical code of conduct governs an Italian avvocato and the performance of their duties. Firstly, Italian attorneys must base their conduct on respect for integrity, dignity and decorum. Failure to comply with this ethical code of conduct leads to disciplinary proceedings.

The legal profession demands honesty and integrity. It is not permissible for an Italian attorney to start a legal action or take part in a proceeding, which may be construed as acting in bad faith.

Secondly, the Italian legal code of conduct safeguards the client. An Italian avvocato has a duty of care and loyalty towards a client. An Italian attorney behaving contrary to clients’ interests, or taking on a case that they are not competent to conduct, would be a breach of this code of conduct.

Does client confidentiality exist in the Italian legal profession?

Yes. Another fundamental duty for an Italian attorney is confidentiality. On the one hand this regards the provision of services to a client. On the other hand it pertains to any information given to a lawyer by the client, or which becomes known to the lawyer. Confidentiality remains valid for information about former clients, or where the attorney, despite knowing the details of a case, does not agree to take on a case.

The relationship between an Italian attorney and a client is fundamentally based on trust; an attorney must defend a client’s interests as well as possible within the framework of legal representation and in compliance with the law and the ethical principles of the legal code of conduct.

Finally …

At De Tullio Law Firm, we have extensive knowledge and experience of Italian and international law. For over 55 years, we have been providing expert legal services throughout Italy. Whatever your legal need in Italy, get in touch with us for a free consultation.

You may also be interested in De Tullio Law Firm: celebrating 55 years in practice.

 

Partition of an Italian estate. Inheritance Law

/in , , , , /by

How does the partition of an Italian Estate work?

In this article we explore the partition of an Italian estate. A testator’s estate comprises assets and rights.

Whenever there is more than one heir in an Italian will, this triggers a condition of joint-ownership of rights and duties.

The co-heirs receive the estate in accordance with their inheritance quota.

This quota may be in  accordance with a will or, where the deceased was intestate, in accordance with Italian inheritance law. Beneficiaries inherit not only assets but also take on any liabilities of the testator.

Get Your FREE Guide to Planning Your Inheritance in Italy

Our PDF guide explains the ins and outs of preparing your inheritance under Italian law

Download now

Partition of an Italian estate refers to the division of assets and liabilities between beneficiaries

At this point, it should be noted that each co-heir has the right to request the partition of an estate at any time following the death of the deceased, unless otherwise stipulated in a will.

As a result, all co-heirs, or their successors (legatees), must take part in the partition of an estate. Failure of one or more beneficiaries to participate, will render their rights invalid. As a matter of fact, absentee co-heirs cannot later rectify this.

According to Italian legislation, the partition of an estate can be executed through three methods:

1. Amicable partition

In order to convert co-heirs’ legitimate rights to a quota of the estate into rights on single assets from the estate, an amicable partition can be made. This would be in the form of a contract. The contract then ensures that the value of the assets individually assigned (known as de facto quotas) equate to the value of the joint ownership quotas.

2. Judicial partition

Should co-heirs disagree on the the partition of an estate, each of them can refer it to the courts. A judgment regarding the partition of an estate may include a number of options. For example:

INVENTORY OF THE INHERITED ESTATE

This includes all the assets and/or liabilities left to the co-heirs by the deceased.

APPRAISAL OF ASSETS

This determines the market value of assets. The testator may have nominated a person or organisation in a will to conduct the appraisal. No estimates are necessary if assets belong in the same asset category. However, in other cases, the estimate of individual assets is essential in order to make portions of value corresponding to the quota of each co-heir in the decedent’s will.  If the decedent died intestate, apportionment is according to Italian inheritance law.

POSSIBLE SALE OF INDIVISIBLE ASSETS

Prior to the partition of an Italian estate, it may be necessary to sell real estate property or to assign property to one of the co-heirs in return for payment. Co-heirs would then receive the proceeds to make up their share of inheritance.

3. Testamentary partition

A testator can stipulate in a will, either the portions to assign to each co-heir, or can simply lay down terms in order to set quotas.

Because the effective value of a testator’s assets may not cover the quotas stipulated in a will and co-heirs dispute the partition of an estate, they have the same recourse: amicable or judicial partition.

Finally …

As a co-heir, it may be difficult for you to manage succession procedures or participate in the partition of the estate in Italy. You can confer a Power of Attorney to sign inheritance documents and paperwork. A specialist Italian inheritance lawyer can assist you and will work in your best interests.

You might find De Tullio Law Firm’s comprehensive Guide to Italian Inheritance useful. If you would like to discuss your situation, you can get in touch with us for a free consultation.

You may also beinterested in Accepting an inheritance with the benefit of inventory in Italy

Italian Inheritance. Why draft an Italian Will?

/in , , /by

If the deceased was resident in Italy at the time of death, Italian Inheritance law applies to the deceased’s worldwide assets. Whereas if the deceased lived outside Italy, Italian inheritance law is only applicable to assets in Italy.

Are international wills valid for an Italian inheritance?

Generally speaking, Italy recognises the validity of international wills. However, it is advisable for non-Italian nationals who own assets in Italy to draft an Italian will.

Why should you have an Italian will?

Firstly, having an Italian will minimises misunderstandings and/or conflicts amongst heirs. Secondly, it facilitates legislative, linguistic and jurisdictional matters with the Italian authorities. Thirdly, having an Italian will can reduce estate tax and lastly, it simplifies the whole inheritance procedure.

Get Your FREE Guide to Planning Your Inheritance in Italy

Our PDF guide explains the ins and outs of preparing your inheritance under Italian law

Download now

Where can I get help drafting an Italian will?

If a foreign national decides to dispose of Italian assets by means of a will in Italy, an Italian attorney, will be able to advise on all aspects of Italian Inheritance Law.  It is a good idea to engage the services of an Italian attorney familiar with both the Italian and the testator’s national jurisdictions.

Italian inheritance law stipulates that the testator must leave a certain portion of assets to immediate family members. This is known as, “Forced Heirship”. Forced heirs are the decedent’s spouse and/or children, or other parties to whom a testator cannot legally deny a portion of assets.

It is important to follow the Italian inheritance procedure accurately. Engaging the services of a qualified and experienced Italian lawyer is therefore highly advisable.

In order to draft a will in Italy, the testator must be at least 18 years old, of sound mind and the legal owner of the assets in the will.

How does the Italian inheritance process work?

Following the death of a testator, the first step is to have the will published. As with all major events in life, an Italian notary needs to do this. Next, a testator’s heirs or executors can proceed with Italian Probate. This involves making an declaration of succession “Denuncia di Successione” in Italian.

Probate must take place within 12 months of a testator’s death. The declaration of succession lists all the relevant assets for the Italian tax authorities who calculate estate tax. Italian estate tax rates are based on heirs’ relationship to the testator and the value of inherited assets.

Once estate tax has been paid, the procedure culminates with the transfer of inherited property in the Land Registry, “Voltura” in Italian.

Finally …

A new EU Law 650/2012, also known as the Brussels IV Regulation came into effect on 17th August 2015. Brussels IV contains a provision for individuals to make an election in their wills for the country of their nationality, or where individuals have multiple nationalities any one of their nationalities, to apply to the devolution of their estate.

Interestingly, there are also potential benefits for non-EU nationals. However, again, appropriate action in the form of a choice of law clause in a will is necessary.
Nominating a country law needs careful consideration. You should take into account matters such as foreign matrimonial regimes, usufruct, tax consequences, joint ownership structures and other foreign proprietary rights with respect to your estate.

Because each case is different, you should seek professional support and advice.

At De Tullio Law Firm, we have over 55 years of expertise managing cross border succession and estate planning matters throughout Italy. Our firm is also a full member of STEP, the world’s leading association for trust and estate practitioners.

Please contact us if you have any questions about estate planning or if would like to discuss your situation.

You may also be interested in How to write a Will

Italian Estate Administration

/in , , /by

“I have inherited Italian assets from a deceased relative. How does Italian estate administration work?”

We received this question from a reader wondering how to proceed with Italian estate administration. We hope that you find our answer helpful. If you have any queries related to Italian assets or inheritance law, please feel free to send your questions to us. We are here to help.

How is Italian inheritance governed?

According to the law of intestate succession, if the deceased didn’t have a will, the assets are transferred to descendants following the principles set out by Italian Civil Code.

If, on the other hand, the deceased made a will, this should indicate wishes regarding disposal of assets.

Want to Learn More About Inheritances Under Italian Law?

Download your FREE copy of our guide to answer all your questions

Download now

Types of will

In broad terms there are two types of will. Either an Italian will, which needs publishing and registering with the relevant Italian authorities. Or, a non-Italian will. In other words, an international will.

According to Italian inheritance obligations, an heir must first have an international will translated into Italian using a sworn translation in an Italian Court.

This can cause legal issues. A non-Italian will, especially if it lacks any explicit reference to the Italian assets, becomes subject to interpretation. In order to interpret the will, heirs need to engage an Italian attorney. This is because the Italian authorities need to ascertain whether or not the will is applicable to Italian assets. If the will does not expressly dispose of Italian assets, succession rights follow the rules of the Italian Civil Code.

Heirs need to accept or renounce an inheritance before Italian estate administration can begin

Whether the deceased left an Italian or international will, heirs have to formally accept or renounce their Italian inheritance. This can be done tacitly or explicitly.

Tacit acceptance is implied. It occurs if, for example, if the heir disposes of or otherwise has dealings with the Italian assets, thereby showing an intent to accept the inheritance.

An explicit acceptance involves making a deed using the services of an Italian notary.

Where an heir is unsure whether or not to accept or renounce an Italian inheritance, a third option, reserved acceptance, offers a possible alternative route.

Once an heir accepts an inheritance, Italian estate administration can begin.

Italian estate administration process

Within twelve months of the testator’s death, heirs or executors  need to file a statement of succession  with the competent authority, which is the tax office – Agenzia delle Entrate. The tax office then calculates estate tax.

Heirs or executors pay the relevant inheritance tax connected with the inheritance. The amount of estate tax payable depends on heirs’ relationship to the deceased and the value of assets each inherits.

The final stage of Italian estate administration involves re-registering immovable assets in the names of the heir(s).

Finally …

Trying to navigate the Italian inheritance procedure without the assistance of an experienced Italian inheritance attorney can be difficult, especially if you are abroad. We would recommend that you seek professional advice and guidance to manage the process sympathetically and efficiently. For more in-depth information about Italian succession, you might find our Succession Guide useful.

At De Tullio Law Firm, we have over 55 years of expertise managing cross border succession and estate planning matters throughout Italy. Our firm is also a full member of STEP, the world’s leading association for trust and estate practitioners.

If you would like to discuss your case, you can reach us here for a free consultation.

Off-Plan Property in Italy. Preliminary Contract Checklist

/in , , /by

Investing in an off-plan property in Italy

Investing in an off-plan property in Italy entails a buyer commiting to buy a property from developer that has not yet been built or that is in the process of construction.

This type of investment hides a number of risks, the major one being that the developer goes into administration during construction of your property and you lose any money you have already invested.

Off-plan property in Italy. Checklist for preliminary contracts

Legislative decree 122/2005 introduced very strict rules concerning buying an off-plan property in Italy. Article 6 of the above mentioned legislative decree states that the preliminary contract for an off-plan property in Italy should contain key elements. A preliminary contract is a legally binding document. Before you sign one, make sure it contains all of the following items.

Ready to Buy a Property in Italy?

Download your FREE copy of our guide to buying Italian property

Download now
A full description of the parties to the transaction

Not only the buyer but also the builder and/ or developer.

Property details

Identification details of the property including cadastral plot references.

Property description

A description of the property including outbuildings for the exclusive use of the buyer.

Building permits

Details relating to the building permit or application for a building permit. In addition, the law explicitly requires the mention of any issue associated with the building permit.

Technical specifications

All technical data relating to the building. The law requires a summary of technical specification in the preliminary contract. Full data must be in an attachment (capitolato). These specifications cannot be modified without the agreement of both parties.

Completion

Deadline date for when the construction will be complete.

Payments

Method of payment. Not only the total price but also a payment plan for deposits and installments. Buyers should only use bank transfers or other traceable methods of payment.

Bank guarantee

Full details of the bank guarantee. Buyers should receive the bank guarantee when they sign the preliminary contract. The guarantee should therefore be in place prior to, or at the latest upon signing the preliminary contract.

Loans

All mortgages or other types of loan for the development. Where a mortgage for the whole development is in the name of the construction company or developer, the company must divide it among all the buyers. Unless this is the case, the notary will not legally be able to sign the deed of sale.

Contractors

A full list of the contractors involved in the construction along with proof of their identities.

Checklist for preliminary contract attachments

As attachments to the preliminary contract buyers should also have the previously mentioned full technical specifications of the property. This should detail all the construction materials as well as listing all the agreed finishes and fittings. In addition, there should be a copy of the plan submitted to request building permits.

What if the preliminary contract lacks one of the elements set out in art. 6?

A preliminary contract not in compliance with the requirements of article 6 may be null and void because it breaches Italian legislation.

Since the above mentioned legal requirements are set out in order to protect the interests of the buyer, only the buyer can object to the validity of the preliminary contract.

Finally …

There are a number of risks involved in off-plan purchases. We have written several articles  about off-plan property purchases in Italy. You can use our search tool to find more on the subject of buying an off-plan property in Italy.

At De Tullio Law Firm, we are property law specialists. We operate throughout Italy. We would always recommend that you engage your own lawyer to ensure that you protect your interests. Before signing any off-plan property-related paperwork, including a preliminary contract, you should seek independent legal advice. If you are unsure about any aspect of your off-plan property purchase in Italy, we are here to help.

You may also like to watch our info videos about buying property in Italy.

Off-Plan Property in Italy. The Italian Law

/in , /by

The main risk with off-plan property purchases in Italy

Another in our series on the important issue of off-plan property purchases in Italy. Use our useful search tool to find our other articles on off-plan property purchases.

Investing off-plan is where a purchaser makes a commitment to buy a property from a developer that has not yet been built or is in the process of being built.

This type of investment can hide any number of risks.

The main risk is that if the developer becomes insolvent, the buyer may well end up out of pocket.

Ready to Buy a Property in Italy?

Download your FREE copy of our guide to buying Italian property

Download now

Guarantees for Italian off-plan property

Italian legislation provides a number of measures to protect buyers if the developer goes bankrupt. However, the onus is on the buyer to ensure that these protections are in place.

Guarantee on deposits

Law 122/2005 declares the obligation of the developer to offer a surety bond. This provides a guarantee to the buyer for deposits prior to the transfer of ownership of the property.

Furthermore, in accordance with art.1 of Law 122/2005, the developer must offer the surety bond at the latest when the preliminary contract.

All Italian off-plan property purchases must have a preliminary contract. A surety bond must be in place by the time buyers sign the preliminary contract. The developer must clearly reference the surety bond in the preliminary contract. If there is no mention of a surety bond, the preliminary contract is invalid unless, the buyer explicitly expresses that it should prevail.

According to article 2 of Law 122/2005 surety needs to be a bank, an insurance company or a financial broker authorised by the Bank of Italy. The surety bond guarantees the buyer repayment of all money paid as deposits.

In order to request an excussion of the guarantee, the buyer must first formally withdraw from the preliminary contract. A buyer’s written request to withdraw, together with evidence of deposit payments, is sufficient to activate the guarantee. Italian legislation stipulates that the surety provider should refund all deposits within 30 days.

Guarantee for building defects

According to art.3 of Law 122/2005 the surety bond also covers damages arising from building defects. This includes any damage the buyer discovers after signing the deed of sale.

Article 1699 of the Italian civil code covers building defects. The guarantee for defects has a statute of limitations of ten years from the finalisation of the building work in question.

Where the seller is a different legal entity from the developer of the property

The seller is legally required to request a copy of the surety bond from the developer and provide this to the buyer. This is part of the seller’s contractual obligations and must be referenced in the deed of sale.

Finally …

If you are considering investing in off-plan property in Italy, our advice is to engage your own independent legal adviser. Bear in mind that a lawyer recommended by a developer or seller may have a conflict of interests in this matter so we advise you to choose your own lawyer. If you need any help, we are here to help.

For more comprehensive information about the Italian property purchasing process, you might like to read our guide. You may also like to watch our info videos about Italian property law.

 

Off-Plan Properties in Italy. Advice

/in , /by


This article was originally provided by De Tullio Law Firm to the British Consulate in 2011. While the article pertains to a Calabrian case, information is relevant to off-plan properties throughout Italy.

If you are looking for additional information about off-plan properties purchases in Italy, you will find a series of articles on the subject if you use our search tool, including a post here about your legal position regarding delivery delays.

Buying off-plan homes in Calabria

A large number of British citizens who have bought holiday property in Calabria have recently contacted the British Consulate in Naples. Many of these transactions have been completed to the satisfaction of the purchasers but, a significant number have run into difficulties with the lawyers involved or with the developers. The Consulate has drawn the matter to the attention of the Italian authorities who are investigating, but we strongly advise purchasers encountering problems of this sort to seek legal advice about obtaining redress.

Advice for anyone purchasing off-plan properties in Italy

Seek legal advice before signing a contract and paying any money upfront

Once you have signed a preliminary contract, it may be too late. Choose your own independent lawyer. We advise you not to use lawyers recommended by the developer or contractor so as to avoid possible conflicts of interest.

Get Your FREE Guide to Buying Property in Italy

Our PDF guide covers every aspect of the buying process so you're ready to purchase with confidence

Download now

Use an independent Notary Public

You do not have to use the notary proposed by the developer or contractor for the deed of sale. In fact, to avoid possible conflicts of interest, we would advise against this. Choose your own notary.

Remember that the Italian version of the contract will prevail in an Italian court

So, either commission the translation yourself from an independent translator or, get any translation you receive checked by an independent qualified person.

Deposit

The amount you pay as a deposit for an off-plan development should be up to around 10%. Seek legal advice if you are asked for more than that.

Stato avanzamento lavori

As the building work progresses, the developer should accompany any request for further payments with a list of the work done (‘stato avanzamento lavori’). Ask an independent surveyor or architect to check the list before you make any payment. The preliminary contract should include a payment plan.

Surety and guarantee

When you buy an off-plan property, you should receive a bank loan guarantee. This must be an annex to the preliminary contract. If the developer becomes insolvent, this bank loan guarantee will often represent the only protection you have for your investment. If you have already received a bank loan guarantee, have a qualified professional check that it complies with Italian law.

Finally …

At De Tullio Law Firm, we are Italian and cross border property law specialists. We operate throughout Italy. If you are considering investing in off-plan property in Italy, please get in touch with us for a free consultation. We are here to help.

Adverse Possession Usucapione of Italian Property

/in , /by

What is Adverse possession (usucapione)?

Usucapione is similar to Adverse Possession. It is a legal situation which is connected with possession of a property. The possession of a property doesn’t happen by force or hostility.

Usucapione is a legal procedure which can give you ownership of a property in Italy without any specific title such as a deed of purchase or a will and without any agreement from the owner of the property.

Get Your FREE Guide to Selling Property in Italy

Our PDF guide covers every aspect of the selling process so you're ready to put your property on the market with confidence

Download now

How does usucapione work?

The possession of whole or part of a property and or land must take place with public knowledge. Legally, after 10 or 20 years, depending on the circumstances, the possessor can obtain the legal title and become the legal owner of the property.

You can become the owner of a property belonging to someone else if you take possession of it and behave as if you own the property. At the same time, the real owner should have behaved as if they have no interest in the property. This could include implicitly allowing another party to use the property.  Typically this might be because the owner has moved abroad and neglected or not looked after the property.

Usucapione has the legal purpose of giving certainty to legal relationships. It privileges someone who, although they are not actually the owner, takes care of the property. The owner is therefore deemed as not looking after it and neglecting it completely.

It takes 20 years for a possessor to acquire Italian real estate assets in bad faith. This starts from the moment of possession. It takes 10 years to obtain possession of an Italian property in good faith. This period of time must be continuous with no interruption.

To convert the factual condition of possession into ownership, the possessor requires a court injunction declaring that usucapione has occurred. Parties may offer evidence in any way they like however, typically witnesses provide evidence of peaceful, uninterrupted possession over time.

Finally …

If you own property in Italy, which you have neglected for some time, it is advisable to consult a specialist Italian property attorney to prevent any risks connected with  usucapione or, if you would like to discuss a case, please contact us for a free consultation.

You may like to read more about Usucapione.

Italian Estate Agents. What Are Their Legal Responsibilities?

/in , , /by

Italian estate agents must be registered

According to Italian Law 39/1989, in order to operate in Italy, realtors and real estate agents must register with their local Chamber of Commerce. Without professional registration, a real estate agent is liable to fines and other penalties. In addition, unregistered estate agents cannot request commissions on property sales and purchases.

Italian legislation also provides an important guarantee for the consumer. Real estate agents must have professional indemnity insurance. This ensures that in the event of negligence by the estate agent, the agent can cover the claim.

Italian real estate agents have legal responsibilities

According to article 1759 of the Italian Civil Code, the real estate agent must make certain disclosures to the parties if the agent knows of, or becomes aware of, matters which impact a property transaction.

Get Your FREE Guide to Buying Property in Italy

Our PDF guide covers every aspect of the buying process so you're ready to purchase with confidence

Download now

A real estate agent is not required to undertake any technical or legal checks and searches (due diligence) concerning listed properties. Nevertheless, an agent must disclose information according to the principles of a professional duty of care.

Under these principles, an agent must therefore provide all information that they have regarding a property. To withhold, impart incorrect or non-verified information about a property to an interested party is against Italian law.

Failure to exercise this professional duty of care could result in a contractual liability and trigger consumer rights including a request for repayment of any commission. In certain circumstances, the client may also request compensation for damages and/or take legal action against the real estate agent.

If the culpable silence of a real estate agent induces a client to sign a contract, which the consumer would not have signed had the estate agent disclosed full information, the real estate agent could be held liable to compensate the client for losses.

Italian estate agents’ commission

According to article 1755 of the Italian Civil Code, if a real estate agent helps close a property transaction, the agent receives a commission from both the buyer and the seller. Commission payments could arise as early as the signing a preliminary contract.

However, in order to receive a commission, the real estate agent must have played a decisive role in the transaction. Simply generating a lead is not sufficient to generate an agent’s commission.

The law does not stipulate, control or regulate rates of commission. In other words, fees are negotiable. It is always advisable to agree the commission in writing before signing a contract with a real estate agent.

Finally …

Property purchasers should be wary of signing any documents before fully understanding the legal implications. Italian law is complex and it is always prudent to have an independent lawyer look at any paperwork before you sign it.

At De Tullio Law Firm we have over 55 years of experience managing property transactions throughout Italy. If you need help, please don’t hesitate to get in touch. We are here to help.

For more comprehensive information about the Italian property purchasing process, you might like to read our guide. You may also like to watch our info videos about Italian property law.