Off-Plan Property in Italy: Insurance And Guarantee

Posta Elettronica Certificata (PEC)

What is a PEC?

PEC stands for posta elettronica certificata. It is essentially a certified email, which has a legal value, like a digital version of a registered letter (lettera raccomandata).

A PEC guarantees legal certainty of the sender’s identity as well as the date and time the email was sent.
A PEC also guarantees that the recipient receives the email and its contents. When the recipient opens and reads your PEC email, you will receive notifications.

Why is a PEC address useful?

PEC is widely used in Italy to send official documents to public administration organisations and private companies. In fact, it is mandatory for Italian companies, public administration organisations and professionals such as lawyers, notaries and accountants to have a PEC address. You can check an organisation’s or professional’s PEC address here.

Although there is no obligation to have one, a PEC email is useful if you have an urgent matter, particularly if you are abroad. The recipient will receive  your PEC email almost immediately. You will therefore get a faster response.

Certain Italian public administration bodies must respond to correspondence within thirty days of receiving it. Whereas it might take several days for a recipeint to receive a registered letter, sending a PEC email will speed up the process yet, it has the same legal value as a registered letter.

In Italy you can use a PEC for a wide variety of official matters such as, requesting official appointments, information or documents. You can also send legal contracts and invoices.

How do you get a PEC address?

To send PEC email, you need to set up a PEC account. Italian providers include LegalMail, ArubaPEC, Postecert, Register.it, Libero.

To obtain a PEC address, you will need to visit your chosen provider’s website and follow the instructions to open your PEC account. This consists of inputting your personal information and uploading a copy of your identity document. Sometimes you will need to add your Italian tax code (codice fiscale). You then choose an address such as yourname@pec.it and a password – just like any other email account.

Costs start from a few Euros a year for a basic PEC account, which usually includes limited storage. The more services you require, for instance you might want additional storage, the more you will pay.

Finally …

If you need help setting up a PEC address, we are here to help. For over 55 years, De Tullio Law Firm has been providing international clients with independent legal advice. We offer services in all the major fields of Italian law

Get in touch at info@detulliolawfirm.com

 

You may also be interested in Insider Tips for Buying A Property in Italy

Review of Italian and EU Divorce Law

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. Italian and EU Divorce Law

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:

  1. 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.
  2. 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.
  3. 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.

Contact us today. We can help.

Inheritance tax in Italy

(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:

inheritance tax in Italy

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.

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How to buy off plan in Italy?

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.

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The law ruling the economic relationship between foreign married couples resident in Italy

This article deals with the issue of the choice of law ruling the economic relationship between foreign married partners who are resident in Italy.

The Italian law 218 of the 1995 amendment reforming international private law, determines the field of application of the Italian jurisdiction and the criteria to individuate the applicable law. Concerning the economic relationship between married couples, if they have the same nationality, the common national law of the two partners will be enforced. In case the two partners have two different citizenships, the law of the state where the marriage predominantly takes place will be enforced.

The Italian law offers a further opportunity: the two partners may agree in a written form that their economic affairs will be regulated by the law of the state of which at least one of them is citizen. Such a choice has to occur not only in written form but also at the presence of an Italian public notary.

In the situation that the choice falls on Italian law, it’s important to explain the way Italian law regulates economic relationships in reference with the purchase of real estate properties. The general principle is one of legal communion; as a consequence if two married partners buy a property it will belong to the both of them in equal proportion. An alternative possibility would be the separation of goods, and in such a case it would be possible to register to property in the name of just one partner. In sum, if a foreign married couple will decides to regulate its economic affairs according to Italian law, they will have to do it with a public deed in the presence of an Italian public notary. In such a context they would have the chance for a further possibility concerning the ownership of their properties: choosing either communion or separation or even trust.

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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Italian inheritance law regulation

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

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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