Coronavirus Business Impact
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Power of Attorney During Coronavirus Restrictions
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Business Opportunities in The United States of America
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Reservation offer for real estate in Italy
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Inheritance Law and Taxes
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Mr De Tullio meets the US Consul, Mr Patrick Horne
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Mr De Tullio meets the US Consul, Mr Patrick Horne The Consul for Political and Economic Affairs of the United States, Patrick Horne visited Martina Franca, where he met our managing partner, Mr Giandomenico De Tullio. Yesterday, 14 September 2018, the Consul for Political and Economic Affairs of the United States, Patrick Horne visited Martina Franca. His second stop on a […]
Review of Italian and EU Divorce Law
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An introduction to Italian and EU Divorce Law
Many of our clients, friends and family members are part of a cross-cultural relationship and for the most part it is an enriching and beautiful experience but it can also difficult to manage. When it comes to marriage and children it is wise to speak to experts both for emotional support and legal support. Regrettably, international separations and divorces are becoming more common. 
Obviously, people don’t enter in to married life thinking about where the best location for a divorce would be. However, where couples choose to divorce can have a major impact on both parties’ financial health, so getting it right is very important. Delays in deciding this could result in a disastrous outcome.
Changes to Italian Divorce Law
In May, 2015 Italy introduced the so-called ‘quickie divorce’ law, which cut the amount of time it takes to get a divorce from three years to as little as six months. The new Italian legislation cuts the time it takes to get a divorce to six months in uncontested cases and a year in contested cases.
While the new law still retains a two-step process – separation and divorce – there are three important changes:
- In the case of separazione consensuale – consensual separation – requested by both partners, the period of legal separation is now six months. After the six-month separation, which begins once the couple has filed an application for separation in court, the couple may file for divorce.
- In the case of separazione giudiziale – judicial separation – only one partner is requesting a divorce, or the couple contest issues such as child custody, division of assets (including property) or alimony arrangements, the parties have to wait 12 months to file for divorce following a court application for separation. If the procedure of separation is still pending following the 12-month period, perhaps for example because parties cannot agree on financial and other aspects of the separation, each party will be entitled to file for divorce. In this case, the processes for separation and divorce will be merged and handled by the judge appointed to rule over the judicial separation.
- The new law is applicable to separation cases that are currently pending. So, those who have already filed for separation will benefit from shorter divorce procedure times.
The European Union Divorce Law
The EU Divorce Law Pact or Rome III Regulation aims at implementing enhanced cooperation in the area of the law applicable to divorce and legal separation. Essentially, this EU divorce law allows expat couples in Italy – and mixed marriage couples, where one partner is Italian and the other not – to choose either the divorce laws of Italy, or the laws of the country where the couple previously lived or the country of their nationality. The decision of which country’s law will apply, needs to be made before divorce proceedings begin.
The Rome III Regulation was adopted by 15 countries including Italy. The UK opted out – so
If a couple does not stipulate an applicable country law, divorce procedures will be governed by Italian courts and legislation if a couple is ordinarily resident in Italy or one partner is resident in Italy and starts proceedings here. However, if the other partner, for example, returns to the UK for six months or more and starts proceedings there before Italian proceedings begin, UK courts and law will govern the divorce.
Another aspect to consider in the choice of divorce law is matrimonial regimes. UK courts often split assets owned by a couple 50/50, whereas Italian courts look more closely at what belongs to whom. This is because when they get married, couples in Italy may choose between a matrimonial regime of shared ownership, comunione dei beni or separate ownership separazione dei beni of their worldly goods in the event of divorce or death.
Unless otherwise stipulated in an agreement, which can be made at the start of a marriage or at any time during a marriage, comunione dei beni is regarded as the default matrimonial regime. Expat couples married elsewhere but resident in Italy are regarded as being married according to this regime. In the comunione dei beni regime, property acquired by the couple during their marriage, whether individually or together, forms part of the couples’ shared ownership. In the event of a divorce, these assets will be split 50/50.
However, there are exceptions. For example, property acquired by a partner prior to the marriage, or property acquired after the marriage as a gift or an inheritance would not be split in the case of a divorce. The choice of matrimonial regimes can therefore have an important impact on choice of applicable law.
Consider the case of an English couple who married in the UK 12 years ago. Since then, the wife has inherited a significant sum of money as well as a house in Italy from her parents. 4 years ago, the husband persuaded the wife that they should move to Italy to live in the wife’s inherited property. Then, after 12 months, the husband moved back to the UK where he issued divorce proceedings. The UK court gave the husband 50% of all the couples’ assets. The Italian courts would have treated the inherited assets as belonging solely to the wife.
Each case is different. There are many issues that need to be taken in to account and at a very stressful time. Which applicable law to choose, requires very careful thought and consideration. An Experienced lawyer will be familiar with cross-border cases, and the complexities which make these divorces so difficult.
Please note, any statement made in this review is intended to be a general practical introductory explanation only and not formal legal advice. This firm accepts no liability or any responsibility for any statement made.
Inheritance tax in Italy
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(inheritance tax in Italy to apply to all the inheritances opened after the 3rd October 2006)
The Law 24 November 2006 no. 286 has been reintroduced to our regulation of the inheritance tax that was abolished by the Law 18 October 2001 no. 383. The tax applies to the single inheritance as a title of heir or legatee and not to the whole inheritance. Now the aliquots and the exemptions of the inheritance tax are the following:
N.B. : the income value of the real estate property is calculated on the cadastral annuity capitalized. The same aliquots as above-mentioned apply also for the deed of donation. The coefficients of reevaluation, in order to obtain the cadastral value, are the following:
-agricultural land: 112,50
-buildings: Cat. C/1 and E 42,84
Cat. A/10 and D 63,00
Cat. B 147,00
Other buildings 126,00
-habitable buildings first home and relative appurtenances 115,50
SUBJECTIVE EXEMPTIONS
Are subjectively excluded from the inheritance tax:
a) The transfers of ownership of the real estate property abroad of a person resident abroad;
b) The transfers in favour of the State, Regions, Provinces and Municipalities;
c) The transfers in favour of the public bodies, foundations, associations, without any necessity to show the use of the real estate property, having as exclusive purpose research, assistance, study, education, the education or other purposes of public utility; in favour of the ONLUS organizations, of the foundations in conformity with ex Law 461/1998 and of the institutes having religion or cults as the purpose;
d) The transfers are in favour of public bodies or of foundations or associations legally recognized, different from that indicated in sub c), if they have the above-mentioned purposes; in this case the institute must show within 5 years of acceptance of the inheritance or from the purchase of the legacy, to have used the real estate property or the rights received or the sum obtained by the their alienation in order to fulfill the purposes indicated by the testator. In the absence of this demonstration the tax must be paid with the legal interest from the date in which it should have been paid.
OBJECTIVE EXEMPTIONS
Are objectively excluded from the inheritance tax in Italy:
a) The titles of public debit, among them included the Ordinary Bonds of the Treasure, the Certificates of the Credit of the Treasure and the Multi-annual Bonds of the Treasure;
b) The other Titles of the State or equal, but also other real estate property or rights declared free of tax by the rule of law;
c) Family business or corporate sharing; the inheritance tax isn’t applied in the case of inheritance or legacy in favour of the descendants having companies in object or branches of them, corporate quotas and shares. In the case of corporations or cooperatives or mutual insurance having the office in Italy, the profit is due as far as the participations by which it acquires or integrates the control of the company, on condition that the beneficiaries continue the exercise of the enterprise’s activity and/or hold control of the same for a period not less than 5 years;
d) The indemnities of severance pay (art. 1751 c.c.) and other indemnities due for the own rights of the heir in force of obligatory social security insurances or stipulated by the deceased;
e) Cultural heritages submitted to the cultural bond predicted by the laws in question, previously to the opening of the succession and the consequent obligations of conservation and protection which were absolved;
f) Claims from the State, local governments and public bodies that manage obligatory forms of welfare service and social assistance, including those for the refund of tax and contributions, until they are approved as existing by order, or declaration from the Administration responsible for payment;
g) The credits judicially contested at the date of the opening of the succession, until their existence is proven will be not recognized within judicial acts or transactions;
h) The claims given from the State within the date of the presentation of the declaration of the succession;
i) The vehicles registered in the public auto register, that are subjected to a separate taxation.
Please note, any statement made in this article is intended to be a general practical introductory explanation only and not formal legal advice. This firm accepts no liability or any responsibility for any statement made.
How to buy off plan in Italy?
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How to buy off plan in Italy?
Investing in off-plan properties in Italy
Investing off-plan is where a purchaser makes a commitment to buy from a property from developer that has not yet been built or is in the process of being built. This type of investment hides a number of risks, the major one being that the builder goes bankrupt and the buyer loses his money.
Italian legislation provides a number of protections for the buyers of such a type of properties. Law 122/2005 declares the obligation of the builder to offer a surety bond. This is to guarantee the buyer for the money deposited prior to the transfer of ownership of the property, in case of bankruptcy or default.
According to art.1 of Law 122/2005 the builder is obliged to offer such a surety bond at the latest at the moment of the signing of the preliminary contract required in off-plan transactions. In absence of such a surety bond the preliminary contract will be considered void unless the buyer explicitly wants it to produce its effect. The surety has to be clearly mentioned in the preliminary contract.
According to article 2 of Law 122/2005 the surety needs to be a Bank, an Insurance Company or a Financial Broker authorized by the Bank of Italy. The surety bond guarantees the buyer repayment of the money paid as deposit.
In order to request the excussion(1) of the guarantee the buyer has to formally withdrawal from the Preliminary Contract. A written request of withdraw from the buyer, together with evidence of payments, will be sufficient to activate the guarantee. The surety will be obliged by the law to pay the money back within 30 days.
According to art.3 of Law 122/2005 the surety bond will also cover damages arising as a consequence of building defects of the property, even when discovered after the signing of the Deed of Sale. The building defects of the property covered by art.3 are listed in art. 1699 of the Italian civil code. The guarantee for such defects lasts ten years from the finalization of the building works in question. In the case that the seller is a different legal entity from the builder of the property, he is obliged to request from the builder a copy of the surety bond and give it to the buyer. This is part of his contractual obligations in reference with the Deed of Sale.
If you are considering to invest in an off-plan property in Italy our advice is to contact an independent separate legal adviser. Such would not be the case when the lawyer is recommended by the Developer or the Real Estate Agent.
Avv. Giandomenico De Tullio
(1) The process or proceedings whereby a creditor must proceeds against a principal debtor before proceeding against a surety or subsidiary debtor
Please note, any statement made in this article is intended to be a general practical introductory explanation only and not formal legal advice. This firm accepts no liability or any responsibility for any statement made.
Buying property off the plan
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Buying property off the plan
Insurance policy for off-plan properties
According to article 4 of the legislative decree 122/2005 the construction company is obliged to deliver to the buyer, at the moment of the transfer of ownership, an insurance policy as guarantee for eventual serious construction defects affecting the property. Such insurance has a cover of 10 years. A good piece of advice is requesting the Notary to make explicit reference to the insurance policy in the Deed of Sale. This article is aimed at explaining what type of defects would be covered under this guarantee.
The notion of a “serious construction defect” has developed substantially throughout the time thanks in large part to jurisprudence. Originally such a notion only included defects involving prejudice to the safety and stability of the property. At present this notion has a larger meaning. It includes all the defects that could provoke a significant decrement to the normal use of the property. As a consequence the guarantee will cover all the damages that might have an impact on the regular use of the property.
If the construction defect has an impact on the regular use of the property, it could also concern secondary elements of the construction. The use of poor or inadequate materials can be considered as a serious defect, if this jeopardizes habitation and implies maintenance works. A good example of serious defect can be the case of detachment of tiles in some areas of the apartment. Another example can be the case of bad sealing of the roof with consequential water infiltrations. All of these examples clearly explain that the notion of “serious construction defects” is rather large.
The law limits the right to receive such insurance policy to buyers who are private individuals. According to a more restrictive interpretation the buyer should also be defined as a “consumer”; this means that he should be entitled to the policy only if he bought the property for personal use. The consequence is that any entrepreneurial or professional use of the property would exclude such right.
The party having the obligation to offer the insurance policy is the construction company, therefore the buyer should not only claim this right but also be aware of the responsibility of the contractor concerning defects in construction works.
Please note, any statement made in this article is intended to be a general practical introductory explanation only and not formal legal advice. This firm accepts no liability or any responsibility for any statement made.