De Tullio Law Firm at Your Overseas Home Property Seminar

Your Overseas Home Property events help people buy and move abroad safely

De Tullio Law Firm at Your Overseas Home Property SeminarProperty Guides and The Overseas Guides Company (OGC) regularly run free events to help people buy property and move abroad safely and risk-free.

Kim Brown founded OGC some 15 years ago. Kim’s parents had bought a home in Cyprus in 2004. However, without access to the right information and with some contacts who turned out to be untrustworthy, it sadly ended unhappily.

High -quality, carefully researched guidance

Seeing the impact on her parents, Kim was determined not to let this happen to anyone else – and so she set up OGC to provide high-quality, carefully researched guidance for anyone buying their dream home abroad.

Kim soon realised that in-depth information alone was just the first step.
“People also needed expert, trustworthy contacts to help them act on that information and turn their dream into reality. We now call these the ‘Golden Three’: your estate agent, your lawyer and your currency specialist”.

OGC has developed an extensive network of trustworthy experts across fourteen countries. They are all tried and tested to ensure the very best service.

Your Overseas Home Property Seminars started in 2017. Since then, a number of events have taken place around the UK. They have helped many people to buy safely overseas.

Expertise

Experts at the Your Overseas Home Property Seminar include leading Italian estate agents, currency, Italian law, finance and removals experts.

As well as seeing plenty of Italian homes at Your Overseas Home, you have the time and opportunity to discuss your personal requirements and get advice on all aspects of buying a property in Italy.

Finally …

De Tullio Law Firm regularly participates at The Your Overseas Home events. We have over 55 years of experience managing cross border property and inheritance matters throughout Italy. If you would like to discuss your personal situation but are unable to attend a Your Overseas Home event, why not get in touch with us today?

 

You may also be interested in our Guide To Buying Property in Italy.

Translating legal documents for Italian Property Transactions

Make sure you understand before you sign

Translating legal documents is a highly specialised field. It demands not only legal experience but linguistic expertise.

In the event of any issues or litigation, the Italian version of contracts will always prevail. So it’s crucial to ensure that you understand every document thoroughly before you sign it.

Italian legal documents prevail

All legal documents relating to Italian property real estate transactions need to go through a notary public (notaio).

The role of a notary is to oversee the sale and purchase, draw up the deed of sale and authenticate the transaction. In addition, the notary collects tax related to the transaction.

As Italian law is applicable to property sales in Italy, documents must be in Italian, independent of the nationality of the parties.

Many buyers from abroad prefer to have a version of documents in their own language. In fact, if buyers are not fluent in the Italian language, it is a legal requirement to have the deed of sale translated. A translator will also need to attend the signing of the deed of sale.

The Italian property buying process

The process of buying a property in Italy is different to many other parts of the world. Firstly, the  buyer makes an offer on the property. If accepted, the buyer and vendor sign a Reservation Offer and the buyer puts down a small deposit. Secondly, if you decide to proceed with the purchase, the buyer and vendor sign a Preliminary Contract. At this point, the buyer puts down a further deposit, usually a minimum of 10% of the sale price. Thirdly, the parties sign the Deed of Sale. At completion, the balance of the sales price, along with other costs and taxes are payable.

It is important that parties to the transaction appreciate the implications of each of these steps. Deposits can be very difficult to get back and you may incur penalties if you back out of the sale. It is essential to ensure that your contracts stipulate certain terms and conditions.

Everything you sign during the purchase process has legal and financial implications

As purchasers, whether you are about to sign a  proposta irrevocabile d’acquisto (Reservation Offer), a  contratto preliminare di vendita (Preliminary Contract) or the atto di vendita (Deed of Sale), or any other property-related document. Everything that you sign sets out legal and financial terms pertaining to your Italian property purchase.

Many real estate agents use standard forms for contracts. The type of form where you fill in the blanks. Often, estate agents provide a translation of these. While the translation can of course be useful in gaining an overview, Italian legal language is technical, ritualistic, archaic and complex. These standard form translations are seldom completely accurate and can even be misleading.

We have managed a number of cases where buyers have been caught out by aspects of “boilerplate translations” relating to their Italian property purchases.

When signing the deed of sale, in the presence of a public notary, Italian law requires that a translator is present if purchasers are not fluent Italian speakers.

Our advice is to make sure that anyone you use for translating legal documents is qualified. Not only from a linguistic point of view but also in terms of legal knowledge. It is also important that you choose someone who does not have a vested interest in the transaction.

Finally …

Although it is not a legal requirement in Italy to engage a lawyer (avvocato), most experts advise that you seek independent legal advice before signing any paperwork. One of the main reasons for engaging your own lawyer is to safeguard your interests through the inclusion of any conditional clauses in contracts.

If you need any support or advice regarding a property transaction in Italy or translating legal documents, please get in touch. The De Tullio Law Firm team of lawyers, translators and professionals are here to help.

You may also be interested in Celebrating over 55 years of experience at De Tullio Law Firm.

Can I Back Out of A Preliminary Contract?

You rather rushed into signing a preliminary contract on an Italian property

Now you need to back out of the preliminary contract.
You rushed into signing because you didn’t want to miss out on a great opportunity. It’s long been your dream to own a property in Italy. When you saw this penthouse apartment, you just had to have it.

In hindsight and after viewing the apartment again, you realise it isn’t as big as you thought. When you first saw the place, you could see the potential to extend into the roof space. However, you now doubt that the municipality will grant permission to convert the space. Besides, you recognise that even if your planning application is accepted, the conversion is going to be prohibitively expensive.

The date for signing the deed of sale is looming. What can you do?

Can you back out of the preliminary contract?

Does the property have a certificate of habitability?

A recent judgment at the Court of Appeal of Milan, stated that if the seller does not deliver a certificate of habitability at the preliminary contract stage, the prospective purchaser may back out of the preliminary contract and, request the return of the deposit.

In other words, there will be no requirement for the prospective purchaser to complete on the sale. In addition, it may also be possible to seek compensation for damages. If, for example, there is proof that the purchaser has incurred expenses or lost out on other property prospects.

Finally …

Never rush into signing any paperwork relating to an Italian property purchase. Always seek independent legal advice before signing anything and, if you’ve already signed a preliminary contract but now want to or need to back out of it, get in touch with us. We have over 55 years expertise in Italian property law.

 

You may also like to read Preliminary Contracts in Italian Property Purchases.

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

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?

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: http://www.detulliolawfirm.com

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.

Contact us today. We can help.

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

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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Requesting a national Visa for Elective Residence.

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.

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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What is a Formal Will, a Holographic Will and a Sealed or Secret Will?

What is a Formal Will, a Holographic Will and a Sealed or Secret Will?

Searching for Wills in Italy

There are three main forms of will in Italy:

  • A Formal Will (Testamento Pubblico), drawn up by a Public Notary on the testator’s instructions. Witnessed and deposited with Public Notary until testator’s death.
  • A Holographic Will (Testamento Olografo), hand written, dated and signed by the testator. No witnesses required. May be deposited with a lawyer, Notary Public or kept by the testator until testator’s death.
  • A Sealed or Secret Will (Testamento Segreto), hand written by the testator, placed in a sealed envelope and deposited with a Public Notary until testator’s death.

All three types of Will must be written 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 with all Italian Will formalities and legal requirements when making an Italian Will.

If it is deemed that someone had a Formal or Holographic Will, which was deposited with a Public Notary, a request with a death certificate attached can be submitted to the District Chamber of Notaries (Consiglio Notarile distrettuale), who will be forward a search request to all Public Notaries within a district.

It is also advisable to submit a request to the Notary Archives Registry Office, in charge of keeping the deeds and wills deposited by the notaries who have ceased business. The General Will Registry Bureau (Registro Generale dei Testamenti), whose headquarters are at the Main Office of the Notary Archives (Ufficio Centrale degli Archivi Notarili) in Rome, can also be consulted.

The General Will Registry Bureau provides the possibility to find out if the deceased had a Will or not, whether in Italy or abroad. The request for the issuance of a decedent’s Will can also be submitted through the Bureau, to the relevant entity of a foreign country which has adhered 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.

According to Italian Will formalities, interested parties may request a subscription certificate, in the name of the deceased, from the General Will Registry Bureau, as well as the reference to the district notary archive where the Will was deposited, in case the notary has ceased business.

The following records are held in the General Will Registry:

1. Formal Wills;

2. Sealed /Secret Wills;

3. Special Wills;

4. Holographic Wills which have been formally deposited with a Public Notary;

5. Memorandum of publication of Holographic Wills, whether or not deposited with a Public Notary;

6. Withdrawal of Holographic and Sealed / Secret Wills, which were formally deposited at a Public Notary’s office;

7. Suspension of previous arrangements caused by death, providing some had been made by means of a new Will.

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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