Brexit: Consequences for Property Owners in Italy

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Can I Back Out of A Preliminary Contract?

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Can I Back Out of A Preliminary Contract?

You’ve signed a preliminary contract on a property. You rather rushed in to it because you didn’t want to miss out on what you thought was a great Back outopportunity. It’s long been your dream to own a penthouse in the centre of Rome and when you saw this apartment, you just had to have it.

However, in hindsight and after viewing the apartment again, you realise the penthouse isn’t as big as you thought. When you first saw the place, you could see potential to extend in to the roof space, but you now doubt that the municipality will grant permission to convert the space. Besides, you recognise that even if your planning application is accepted, it’s going to be prohibitively expensive. The date for signing the deed of sale is looming. What can you do? Read more

Stability law 2016

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How Can An English-­Speaking Italian Inheritance Lawyer Help with The Italian Inheritance Process?

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How Can An English-­Speaking Italian Inheritance Lawyer Help with The Italian Inheritance Process?

If you have been named as a beneficiary of assets in Italy, and you have decided to accept your Italian inheritance, it is a good idea to use a specialist solicitor to help support you. The Italian inheritance process can be a complex process, so obtaining the right legal advice and having the right lawyer on your side will be massively beneficial in helping you get through it, especially if you are not resident in Italy. This article looks at some of the reasons why you should engage legal services.

It can be an emotional time. The loss of a loved one makes families feel fragile and emotionally vulnerable. This is completely understandable. Dealing with inheritance issues on top of loss can feel very stressful. Having an attorney with legal expertise in Italian inheritance matters will help relieve some of that strain.

Protect your inheritance. A specialist Italian counsel will be acting on your behalf -­‐ and in your interests -­‐ throughout your case. This means that you can be assured of having a calm, rational, professional and trustworthy presence in Italy. You will also receive sound advice for all the issues that arise during the inheritance process.

Probate is a complicated area of law. Italian probate procedure is not always easy. It can be frustrating and time-­‐consuming. Your solicitor will be able to guide you through all the legal and tax issues that may arise.

A lawyer can help you gather evidence. You may need to be able to prove your legal entitlement. Your solicitor will be able to provide legal expertise and help you to gather the necessary documents and evidence.

A lawyer can support you in court. Most inheritance cases are uncontested and if there are claims, cases tend to be settled out of court because it ultimately helps to reduce the cost of the case. However, if your case does end up in court, having an attorney behind you can be enourmously advantageous. Having your own attorney will help ensure that all of your documents are in order, strengthen your legal position and add knowledge to your case. The above are just a few of the reasons why you should engage a solicitor when accepting an Italian inheritance. Above all, engaging the services of an Italian lawyer who speaks your language will give you the peace of mind that your case is being properly handled and that proceedings run as smoothly and efficiently as they possibly can.

We have produced a comprehensive Guide To Italian Succession. It is packed with legal advice about the Italian Inheritance process, which we hope you will find useful. You can find the guide here.

If you would like to consult an Italian inheritance lawyer about your case, please contact us.

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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How Can An English-­Speaking Italian Property Lawyer Advise with The Purchase of A Property in Italy?

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I am quite surprised when I hear people say that consulting an Italian lawyer when buying property in Italy is unnecessary, even a waste of money. Buying a home anywhere, including Italy, is probably one of the largest and most significant purchases you will make in your life.

It involves the law of Italian real estate property, which is complex and raises special issues of practice, and problems not present in other transactions and or jurisdictions. An Italian real estate attorney is a trained legal specialist, experienced at dealing with these problems.

Briefly, in the typical Italian home purchase, the buyer enters into a brokerage contract with a real estate agent, usually in writing. Negotiations with the vendor are conducted through the broker, who most often acts as an intermediary. Once an informal agreement is reached, buyer and seller enter into a formal written contract for the sale, the purchase agreement. The buyer pays deposits. Ownership is ascertained, titles, deeds and other due diligence needs to be undertaken. Finally, the property is transferred from the seller to the buyer, and the seller receives the purchase price stipulated in for in the contract. This seems simple, but without a solicitor on your side, the consequences may be more disastrous than purchasing a car that turns out to be a lemon, or a stock investment that was unwise. For more detailed information, please consult our Guide to Buying Property in Italy – available on our homepage:

I would always recommend that you consult an English-­‐speaking lawyer in Italy – usually there will be no fees for an initial consultation and no obligation to engage his or her services. An Italian counsel specialised in Italian property law will be able to offer you advice about your prospective transaction and help you avoid some common problems with the purchase, or sale, of a home. For example, a buyer may sign a brokerage agreement with a real estate agent that does not deal with a number of legal problems. This happens quite often; realtors often use standard forms, expecting that they will cover all circumstances or will be easily customisable for unusual circumstances.

In the absence of an agreement to the contrary, the buyer may become liable to pay a brokerage commission even if a sale does not occur, or to pay more than one brokerage commission. A lawyer can explain the effect of seeking property through multiple estate agents. He or she can negotiate the realtor’s rights if the buyer withdraws the property from the market, or can’t deliver good marketable title.

Even if a lawyer is not needed during the course of negotiations, the buyer and seller each may have to consult with a lawyer to answer important questions, such as the tax consequences of a cross-­‐border transaction.

The purchase agreement is the single most important document in the transaction. Although standard printed forms are useful, it can be helpful to consult a lawyer for explanation and clarification of the form and for making any changes and additions to reflect the buyer’s wishes. There are many issues that may need to be addressed in the purchase agreement; below are some common examples:

• If the property has been altered or there has been an addition to the property, was it done lawfully?
• If the buyer has plans to change the property, can what is planned for the property be done lawfully?
• What happens if a buyer has an engineer or architect inspect the property and termites, asbestos, radon, or lead-­‐based paint is found?
• What if the property is found to contain hazardous waste?
• What are the legal consequences if the closing does not take place, and what happens to the down payment? This question raises related questions: Will the down payment be held in escrow by a lawyer in accordance with appropriately worded escrow instructions?
Again, it is important to remember that printed contract forms are generally inadequate to incorporate the real understanding of the buyer and seller without significant changes. After a purchase agreement has been signed, it is necessary to establish the state of the seller’s title to the property to the buyer’s, and occasionally to a mortgage lender’s, satisfaction.

An Italian property lawyer can help execute the title search and explain the title and determine whether the legal description is correct and whether there are problems with co-­‐owners or prior owners. He or she can also explain the effect of easements and agreements or restrictions imposed by a prior owner, and whether there are any legal restrictions which will impair your ability to sell the property later on.

The title search does not tell the buyer anything about existing and prospective plans in the area. Having your own Italian legal advisor will enable you to obtain this type of information more accurately, thoroughly and easily than trying to do it yourself.

The closing is the most important event in the purchase and sale transaction. When you purchase a property in Italy you must do so through a notary. A notary is a government official but they are independent and their main task is to ensure that all documents are genuine and all legal issues regarding a property are dealt with properly. There is no choice about this, a notary must be involved in the transaction.

Although the role of notary is to ensure that the transaction meets all legal requirements, this does not mean that the notary is acting on the buyer’s behalf to ensure the buyer gets the best deal. Furthermore, contrary to what many people believe, the notary cannot guarantee the absence of legal issues such as works and features built unlawfully (abusivi). While a notary will check planning permission for example, a notary will not make a site inspection of the property to ensure the absence of illegal works. An Italian property lawyer will work on your behalf to guarantee that your property conforms to Italian building legislation and regulations.

Having your own Italian attorney is helpful in explaining the nature, amount, and fairness of closing costs. The deed is signed, and an attorney can assure that these documents are appropriately executed and explained to the buyer. The notary will in fact require the presence of a translator at closing if it is deemed that the buyers are not fluent Italian speakers. So having an English-speaking Italian legal advisor makes sense since buyers benefit not only from translation ability, but also legal know-how and expertise.

The closing process can be confusing and crowded. Those present at the closing often include the buyer/s and seller/s, their respective attorneys, and the real estate broker. There may be last minute disputes about delivering possession and personal property or the adjustment of various costs. If you are the only person there without a lawyer, your rights may be at risk.
Perhaps the most important reason to be represented by an attorney is conflicting interests of the parties. Throughout the process, the buyer’s and seller’s interests can be at odds with each other, and even with those of professionals involved in the sale. The broker generally serves the seller. Both seller and estate agent want to see the deal go through, since that is how they will get paid. Neither can provide legal counsel. The respective lawyers for the buyer and seller will serve only their own clients’ best interests.

Seeking the advice of a lawyer is a very good idea from the time you decide to buy a home until the actual closing.

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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Buyers Beware. Latent / Hidden Defects in An Italian Property.

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Where exactly do you stand if you discover major defects with your Italian property following completion? You move into your dream Italian home only to find that the condition of the property is significantly worse than anticipated.

This is exactly the nightmare scenario the Wright family in Lazio found themselves in. The day after moving in, the family discovered serious water penetration into several rooms in the house, notably the kitchen and living room.

Following their discovery, the Wrights raised the matter with the previous owners, who denied there was a serious problem; the particulars of the property had provided no information on its condition, and the Public Notary also considered that given the Wrights had signed a legally binding Proposta di Acquisto declaring that they were purchasing the property ‘in condition as seen’, then there was nothing he could do.

Well possibly, but Italian law on this issue is not quite that clear cut. In general, it has to be said that the principle of, ‘caveat emptor’ -­‐ buyer beware, applies as much in italian law as it does elsewhere. However, in Italy the seller has an obligation to disclose to the buyer all important information concerning the property.

There is nothing in Italian law that states specifically what must be disclosed by the buyer, other than the information must be something of a profound nature, of which the seller was aware at the time of the sale, and about which, if the buyer had known, they would not have proceeded with the purchase, or would have offered a lower price.

In particular, the vendor is obliged to disclose any ,‘latent defects’ (vizi occulti) in the property. If the vendor fails to disclose latent defects, then it is possible for a court of law to annul the sale, or at least reduce the price paid by the purchaser. Litigation is the route that the Wrights were forced to take in order to obtain compensation .

However, if the Wrights had sought advice from a competent property legal advisor before signing the Proposta di Acquisto, they could have avoided a lot of heartache not to mention a costly and time‐consuming court case.

Real estate agents generally offer a standard Proposta di Acquisto. This ‘one size fits all’ printout contains a legally binding, standard exclusion clause pertiaining to ‘sight as seen condition’.

If you are in the process of buying a property in Italy and are thinking of signing a Proposta di Acquisto, check to see if it contains a clause like this: L’acquirente dichiara di aver preso visione dello stato di fatto in cui attualmente si trova quanto promesso in vendita, di averne valutato le caratteristiche e le qualità (anche ai fini della determinazione del prezzo di vendita) e di accettarle integralmente.

In practice whether a court of law upholds this clause depends on the circumstances of the case. If the court considers that the buyer has been deliberately misled by the seller, then they could
annul the clause.

Our advice to buyers is that you should always seek the advice of a property legal advisor before signing any legally binding document. You may press for the removal of this clause in the Proposta. The vendor may well refuse to do this. If so, then the vendor’s objection to removing the clause needs to be questioned.

You should certainly be hesitant about signing a Proposta unless you understand exactly what you are buying.

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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A norm introducing the ECS (European Certificate of Succession) was published on the Official Journal n.261 – Ordinary Issue n. 83 on November 10th 2014,
The task of issuing such certificate will be handled by notary publics.
Primarily, The European Certificate of Succession is a new European document of uniform law, whereby the heirs, legatees, will executors or inheritance administrators will be able to exert their qualities and inherent rights, powers and facility matters in a foreign country, without any further paperwork.

• The ECS can be utilised in another EU Member State but is also valid in the issuing country..
• As of August 17th 2015, notary publics will have the possibility to release the ECS for all the succession procedures handled from such date onwards;

It is possible to request ECS to any Italian notary public (without any hindrances as to where the succession occurs and/or the assets are) in the following circumstances:

• If the deceased has his/her habitual residence or citizenship in Italy at the moment of his/her death;
• If such residence has not changed and the ECS was requested 5 years prior to his/her death;
• If the deceased has chosen to comply to the Italian law of citizenship at the moment of his/her death;
• In case there is a sufficient enough connection to the Italian State when the succession procedure is started and no other competent authority can act thereto.

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Requesting a national Visa for Elective Residence.

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What is a national visa for elective residence? The visa for elective residence grants access to Italy to foreigners wishing to reside in the country and who reckon to be able to subsidise themselves finacially, without carrying out any working activity (Article 13 of Attachment A of the interministerial Decree MAE n°850 from 2011, defining the types of entrance visas and the requirements needed in order to obtain them).

Whad paperwork is necessary in order to obtain it? Foreigners wishing to obtain the residence visa, will have to provide proper and documented proof about the existance of a dwelling to be chosen as his/her own place of residence, as well as the availability of a relatively vast financial yearly income. Such income should add up to less than 31,000 euros a year (i.e. triple yearly amount as opposed to the amount estimated in chart A attached to the directive issued by the Ministry of Internal Affairs on March 1st 2000, reporting the means of sustenance needed for the access and the residence of foreigners in the State’s territory), and can come from the entitlement to substantial incomes (i.e. pensions, life annuities), from owning real estate, from stable businesses or from any sources other than subordinate employment.

Who is entitled to the visa other than the requesting party? The cohabiting spouse, underage and adult dependent children will receive the same visa, providing that the aforementioned income is deemed as adequate to the ends of their sustenance as well. Furthermore, the total amount of the monthly incomes will have to increase by 20%, in case the visa is requested for the spouse as well . Such increase will have to add up to at least 5% for each dependent child.

What criterion applies in case the dwelling property is purchased in Italy? Providing that a dwelling property is purchased in Italy, the Embassy and the Consulates will apply the criterion of the “minimal financial requirement” as according to the Italian regulation (about 31,000 euros a year). In other cases, in accordance with such regulation, the task of establishing the effectiveness of such requirements is entirely up to the Embassy.

How long is the visa valid for and what does the renewal procedure entail? The issued visa for Elective Residence will be valid for 1 year after which the visa can be renewed at the competent police headquarters providing that the original requirements are still valid. The entrance visa must be converted into a residency permit within 8 days from the arrival to Italy, as for all other typologies of long-lasting visas. Such residency permit cannot be renewed or postponed if the foreigner has interrupted his/her stay in Italy for a span which is longer than six months, except if such interruption was mandatory due to military duties or other significant and substantiated motivations.

Is any working activity legit with this type of visa? No, this type of visa does not allow carrying out any working activity in Italy.
Is there any other type of visa for longterm stayers? After 5 years, it is possible to request an EC permit of residency for longterm stayers which has permanent validity and allows its holder to benefit from the same treatment as the one granted to EU citizens.

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A few facts about Power of Attorney and its legal implications.

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You may have often heard of “power of attorney,” yet you may still not know exactly what its purpose is or when its use is considered proper.
In order to shed some more light on the subject, some basic facts on Power of Attorney are explained as follows together with the legal ramifications to purchasing and/or inheriting real estate in Italy.

What is Power of Attorney? A Power of Attorney – “Procura” in Italian, is a legal document by means of which “principal” gives certain powers to act legally on his/her to someone else: the “agent”;.
What is its content? A “Procura” clarifies exactly what powers the principal gives to the appointed agent.
What are the currently existing types of “Procura”?

1. In case of a “Procura Speciale” (Special Power of Attorney), limited powers are given to your attorney/agent in the following cases:
o If, for instance, you are purchasing an estate in Italy, but cannot be on site on the day in which the sale deed must be signed, you can bestow the power to sign such deed on your attorney / agent.
o If, for example, you live in the USA, have inherited assets in Italy, but are unable to make it to Italy to file for probate, re-register assets in your name or organize the legal division of assets from a communal inheritance, you may give your attorney / agent the power to handle the Italian succession procedure on your behalf.

2. A General Power of Attorney (Procura Generale) entitles your agent to do almost anything you could do.

In what circumstances can a Procura be revoked? Both Special and General Power of Attorney are usually terminated in case the principal dies or becomes legally “incapable”. However, if necessary, a Power of Attorney can be anulled at any time by means of the same legal document used to confer it in first place.

What should I consider before appointing an agent/attorney? If you are considering granting a Power of Attorney, you should be extremely careful about whom you chose as an agent/attorney as you are delegating the very management of your own affairs to someone else. Hence, it is extremely important that you entrust a reliable and competent person with this delicate task, preferably a professional. Conferring Power of Attorney to someone who does not have enough experience or that you might have a conflict of interest with is highly advised against.

What are the legal requirements to the issuing of a Procura? A Procura is a formal document, and many legal requirements must be met before it can be issued.
Generally, it is examined by the competent authorities carefully before it is released. The agent will need to sign the Procura in his / her home country in the presence of a public officer.
The USA, UK and Australia have signed The Hague Convention of 5th October 1961 which abolished the Requirement of Legalisation for Foreign Public Documents. In any case, an Apostille Certificate or Stamp, also known as the Hague Apostille,is required as proof of authenticity. Ensure to check the pertinent procedures with the UK Foreign and Commonwealth Office, the US Department of State and the Australian Department of Foreign Affairs and Trade.

A Power of Attorney is a very delicate matter. You are granting your rights and the handling of your affairs to someone else. Make sure to seek for the help of a professional before drawing up a Procura.

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