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.
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