Italian inheritance law regulation

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What are the principles at the basis of Italian inheritance law?

The law n.218 of the 31st of May 1995 regulates the field of Italian inheritance law in the framework of international private law.

The succession rules are determined on the basis of the national law of the deceased party at the moment of his death.italian inheritance law

The Italian legislator adopted the principle of “unity of inheritance”. This principle differs substantially from the one adopted in common law countries. It is based on the separation between non-property assets and property assets: to non-property assets the law of the last domicile or last citizenship of the deceased party is applicable, and to property assets the so called “lex rei sitae” (law of the country where the property is located). One of the most important consequences is that, if the hereditary asset includes properties located in different states, the succession of each single property could be regulated by the law of the country where the property is located.

The law regulating the succession is the national law of the deceased at the time of his death. The Italian rules on conflict of laws consider the possibility that the national law of a deceased foreigner might defer to the law of another country. Such deferment is effective only if the law of the third State accepts the deferment. Here is a practical example: if a British citizen before his death left some properties in Italy, the succession will be regulated by the British law. But following the British “conflict law” the law applicable to properties should be the “lex rei sitae (law of the country where the property is located), that is/viz., the Italian inheritance law.

The testator has the right to submit his succession to the law of the country where he resides. Such choice has to be formally expressed in a will and shall not be prejudicial of the rights that the Italian law provides for the so called legittimari” ( members of the family who have the right to receive a fixed part of the property of the deceased even against the will) who are resident in Italy at the moment of death of the deceased.

It is highly advisable to draft an Italian will assisted by your Italian  inheritance lawyer in order to limit the consequences of the “legal succession”. The “legal succession” applies where the deceased has not left a will, in such case the Italian law determines which relatives of the deceased have a right to succeed (primarily the spouse, the legitimate and natural children, and the ascendants). In case of lack of heirs, according to the Italian inheritance law, the hereditary assets present in Italy would be assigned to the Italian State.

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.

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Legal requirements for preliminary contracts in off-plan transactions

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Preliminary contract

Definition of legal requirements for preliminary contracts in off-plan transactions

The legislative decree 122/2005 introduced very strict requirements for preliminary contracts concerning investments in off-plan properties in Italy.

Following art.6 of the above mentioned legislative decree the preliminary contract should also contain:

  • A full description of the parties.
  • Identification details of the property, including the cadastral reference of the plot – A description of the property is required including of those outbuildings for the exclusive use of the buyer, the object of the contract.
  • Details relating to the building license or the request for the building license – The law explicitly requires the mention of any burden connected with the building license.
  • Technical data relating to the building – The law requests a summary of the technical data in the preliminary contract. Such data will be described in detail in the attachment concerning technical specifications (capitolato). Such specifications cannot be modified without the agreement of both parties.
  • A deadline for completion.
  • A method of payment – The entire price should be declared, also specifying the amounts paid as a deposit. Payments should be executed by using bank transfers or other means that are traceable and that will leave a clear trail.
  • Details of the bank guarantee – The bank guarantee should be delivered at the signing of the preliminary contract. Such a guarantee should be issued prior to, or upon signing of, the preliminary contract.
  • The presence of mortgages or any other type of burden – In the presence of a mortgage opened by the construction company covering an entire compound that shall be parcelled out amongst several buyers, the notary will not be entitled to sign the Deed of Sale until the parcelling out of the said mortgage to the individual buyers has been completed.
  • The presence of the contractors together with proof of their identities.

The preliminary contract should also have the following attachments:

  • Technical specifications of the property, detailing all the materials to be used in the construction, a list of agreed finishes and fittings.
  • Copy of the Plan submitted to file the request for the building license.

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

A preliminary contract not in compliance with the requirements of articles 6 could be affected by nullity on the grounds of its contrasting with mandatory rules (public policy).

Since the above-mentioned legal requirements are set in order to protect the interests of the buyer, the invalidity of the preliminary contract can be objected to only by the buyer.

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.

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Responsibility of the contractor for defects and/or variations in construction works

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The first essential advice I can give you before entering into a contract with a Construction or Renovation Company is: call your legal advisor requesting him to draft a contract between you and the Company you have chosen to carry out the work. A professionally drafted contract is your best protection if any problems connected with the works arise.

Whether this is because of defective material, poor execution of works, variations from the agreed plan or a request for additional money, a professionally drafted contract in both English and Italian will prevent a lot of problems and stress and often save you a considerable amount of money.

Below I have summarised the Italian legislation covering this topic.

The contractor is responsible for defects and unauthorized variation of works. If there are visible defects, the client should not accept the works otherwise he will lose the right to his guarantee (art. 1667, first paragraph of the Italian civil code).

In order to formally contest the works the client should request his legal advisor to notify the contractor through a formal letter of default. If the client accepts the works, and defects and/or unauthorized variations of works are visible, he will lose the right to a guarantee unless the contractor omitted the defects and variations maliciously.

The contractor is acting maliciously when, although aware of the defects and/or variations, he/she does not clearly declare such things to the client.

HIDDEN DEFECTS

The acceptance of work does not compromise the clients” guarantee in reference to hidden defects. Such defects can be contested when they are discovered.

In order to resort to the guarantee the client, through his lawyer, should do the following:

  • Report the hidden defects within 60 days of their discovery
  • Take legal action within 2 years from the end of works

If one of the two above-mentioned obligations is not complied with, the client will lose his rights to the guarantee. In cases where the contractor not only omitted to confess the defects, but also behaved in a malicious manner in order to hide those defects, the time limit for legal action is extended to 5 years.

FAULT OF THE CONTRACTOR

Once the defects and/or the unauthorized variations have been proven, the fault of the contractor is considered as presumed, so it will be his responsibility to prove the absence of negligence.

COVER OF THE GUARANTEE

According to article. 1668 of the Italian civil code, in the case of visible or hidden defects the client is entitled to take 4 possible legal courses of action:

  • He can request the elimination of the defects and/or variations, the total cost to be borne by the contractor;
  • he can ask for a reduction of the price;
  • if the variations or the defaults are very serious he can request the dissolution of the contract; and
  • he can request to be compensated for damage.

RESPONSIBILITY OF THE CONTRACTOR FOR NEW BUILDINGS

Article 1669 of the Italian civil code provides particular regulations for new builds. In such cases the contractor will be responsible for collapse (total or partial), evident danger of collapse or serious defects in the construction. Jurisprudence has extended this accountability to renovation works expected to last for a long time e.g. paving and waterproofing on a roof.

The contractor’s responsibility will last for 10 years from the date of completion of the works. The defective work should be contested formally with a legal letter of default drafted by your lawyer and addressed to the contractor within 1 year of its discovery.

Under Italian Law the client has one year from the time of the recorded delivery of the letter of default to start a legal action in court against the Contractor. Once serious defects are highlighted the contractor is presumed to be responsible unless he is able to prove the opposite.

EXAMPLES OF SERIOUS DEFECTS

There is a very significant jurisprudence defining the meaning of “serious defects”. In broad terms those defined as serious defects are the ones seriously jeopardizing the use of the property or the ones having a significant impact on essential structural elements such has solidity, efficiency and duration of works.

Here are some examples of serious defects highlighted by the jurisprudence:

  • Detachment and rupture of a significant number of tiles
  • Inadequacy of thermal insulation
  • Defective heating system jeopardizing the normal use of the property
  • Defects concerning the roof of the property causing infiltrations of water
  • Inefficiency of the plumbing system
  • Defects of the chimney or flue jeopardizing a normal use of the property

THE INSPECTION OF WORKS

Article 1665 of the Italian civil code offers to the client the possibility to inspect works before they are signed off. Such a right exists also during the execution of the work.

It is highly recommended to involve your lawyer in this process and an independent surveyor.

According to art 1665 par. 4 if the client accepts the works at the point of signing off without requesting an inspection or without contesting, the works are presumed to be accepted. The work is also implicitly considered as accepted when the client accepts it without making any type of formal objection. The direct consequence of this is the loss of the guarantee for visible defects or unauthorized variations, (an exception is made for those ones maliciously not declared by the contractor). At this stage the contractor will be entitled to the final settlement of his fees.

In case you are facing problems concerning your construction or renovation work please do not hesitate contacting De Tullio Law Firm. We offer legal assistance throughout the entire Italian territory.

Contacting a lawyer in the early phase of a dispute can often lead to a friendly settlement, avoiding lengthy and costly litigation.

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.

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What is a certificate of occupancy?

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Certificate of occupancy in transactions of properties in Italy

The Certificate of Occupancy (also called Certificate of Habitability) certifies the suitability of a residential property as being fit for human habitation.

It is issued by the competent municipal offices following verification that the building and its systems comply with health, safety and structural stability regulations. According to law, prior to issuing the certificate of occupancy, the competent authorities should also verify that the building complies with planning permission.

The case law of the Supreme Court is unanimous in stating that in real estate transactions the certificate of habitability is one of the documents that the vendor must deliver to the buyer before completion. As a matter of fact the buyer has the full right to verify that the property is suitable to satisfy his legitimate interest, that is the usability and marketability of the property. The above mentioned certificate can be considered an essential requirement of the building because it has direct effects on the legal use of the property as stipulated in the contract.

Unless otherwise stipulated in contractual agreements, the responsibility to provide the certificate of habitability belongs to the vendor. In case of delay or failure to deliver a certificate of habitability, there is a clear case of non execution of a contractual obligation (breach of contract). A recent decision by the Supreme Court states that, “The vendor of a property intended for residential use has a duty to deliver to the buyer the certificate of habitability without which the property is unmarketable”. (Cass. 23 of January 2009, n. 1701).

In case of absence of certificate of habitability the property can nevertheless be transferred with a notarial deed of sale but only with the buyer’s express, written consent. Verifying the existence of the certificate of habitability before completion of the purchase of a property should certainly be part of the legal due diligence.

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.

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International Property for Sales

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International Property for Sales?

The legal framework regulating international property sales

The legal framework regulating international property sales is set by the Italian Law together with international treaties. When there is a conflict between Italian and International laws, the latter will prevail. international property sales

Art.51 of the Italian law n. 218 (31st of may 1995) states that a real estate conveyance will be regulated by the law of the place where the property is located.

The Rome Convention binding the all EU Member States (19th of June 1980) regulates the applicable law to contractual obligations. Read more

Italian real estate attorneys and Italian inheritance attorneys

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Legal responsibilities of real estate agents in Italy

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Real estate agents in Italy

Legal responsibilities of real estate agents in Italy

According to the Law 39/1989 real estate agents must be registered with their local Chamber of Commerce. If the agent is not registered, he will then be liable to fines and other penalties and he will not be entitled to the agreed commission. This legislation also provides an important guarantee for the consumer, in that it requires the agent to have adequate insurance cover in order to practise their profession. The scope of such insurance policy must provide the consumer with cover in the event of  professional negligence on the part of the agent.

According to article 1759 of the Italian Civil Code the real estate agent must make certain disclosures to the parties if s/he knows or becomes aware of matters which strike at the roots of a transaction – your Italian Attorney can advise in full detail on such situations. Whilst the real estate agent is not required to undertake any technical-juridical investigations concerning the property which might have an impact on the transaction (legal due diligence), he is nevertheless charged with duties to disclose information according to the principles of  normal professional diligence. The  agent is therefore obliged to give information on each circumstance within his knowledge or that he should have known about under those principles . To impart wrong or non-verified information to a party would not be acceptable according to the law.

Failure to abide by such principles could result in contractual liability and trigger the right of the consumer to request repayment of the commission. In special circumstances the consumer could also be entitled to request compensation in the form of  damages.

If the culpable silence of a real estate agent induced the consumer to finalize a contract under different conditions than he would otherwise have done had he been properly informed, then the real estate agent could be responsible to pay for the consumer’s losses.

According to article 1755 Civil Code, if the deal is closed thanks to his intervention, the real estate agent is entitled to a commission from both parties. Such a right could arise from a point as early as  the signing of the preliminary contract, assuming that it were otherwise complete in all its essential elements.

In order to be entitled to the commission the real estate agent must have played a decisive role in the transaction. Simply generating the lead of a potential buyer without accomplishing any other task is not enough.

The law does not stipulate or control the rate of  commission, and this can therefore always be freely agreed by the parties. It is always advisable to agree the commission in writing.

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.

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