What is the difference between an Italian notary and a lawyer?
International clients are often confused about the role of an Italian Notary. There is a mistaken belief that a public notary (notaio) performs the same function as a lawyer, solicitor or attorney (avvocato). This is not the case.
Public notaries emerged from the institution of scribes and scriveners. They were revered and knowledgeable public officials of the Roman Empire. These Notaries prepared and drew up fair copies of deeds and other legal documents. They endorsed these documents using the seal of the court and thus the documents became ‘public acts’. Eventually, Notaries gained the right to use their own official seals to give their acts public status.
In modern times, Italian notaries act on behalf of the Italian State. It is the Italian Ministry of Justice that appoints them. Because an Italian notary is an official of the Italian State, a document endorsed by a notaio guarantees its legal status.
On the other hand, a lawyer, is someone you engage to act exclusively on your behalf in a legal matter. Whereas a lawyer exclusively commits to protecting your interests, a notaio endorses acts, deeds and documents and collects taxes.
A notaio is a qualified lawyer who works as a public officer for the Italian State. However, because an Italian notary is an official of the State, by law they must maintain impartiality in all transactions. A notary cannot therefore provide legal representation to any party involved. A notary can however provide advice if requested but, must protect parties equally.
An Italian notary prepares acts, endorses documents and collects tax for the Italian State
Notaries operate in every area of law including family, property, inheritance, asset, corporate, rural, local authority, and other areas. An Italian notary is present at all significant times in life which require a State document or tax payment.
A notary is empowered by the Italian State to endorse documents, agreements, contracts and other instruments by affixing a seal and signature. In so doing, Italian Public Notaries officially witness the wishes expressed by the signatories and give a personal guarantee regarding the content and date of the instrument.
Although a notaio has public authority, the notaio operates on a self-employed basis. They are mostly paid by clients (not by the taxpayer) on the basis of a rate fixed by the Italian State for notarial services.
Regardless of whether a property is purchased from a private vendor or through a real estate agent, in accordance with Italian legislation, a notaio must oversee the sale. The notaio is responsible for receiving all legal documents pertaining to the sale, verifying their authenticity and drawing up the deed of sale – Atto di Vendita.
Often in Italy the vendor and purchaser use a single notaio for a property transaction. According to Italian law, it is the buyer’s legal right to appoint the notary public. We would advise that buyers choose their own notary. You should bear in mind that an estate agent and the vendor have a vested interest in selling a property. Using a notary recommended by these parties may therefore create a conflict of interest.
What is the specific role of an Italian notary in Italian property transactions?
The notaio may execute certain checks at the very end of the conveyancing process but, this would only be after the buyer has already paid substantial deposits to the vendor.
Checks might include each party’s rights to buy or sell the property, or a land registry search to see whether any third parties have a claim on the property. A notary may also search for any mortgages on the property or verify the presence at of planning permission. However, a notary public will not inspect the property to make sure it actually complies with planning permission.
The main role of the notaio therefore revolves around the exchange of contracts. This involves drawing up the deed of sale. This is based on input from the vendor and/or the estate agent and the preliminary contract.
At the signing of the deed of sale, an Italian notary first verifies the identity of parties involved in the transaction. Then the notaio reads the contract aloud to all parties. After all parties have signed, the notaio provides a copy of the deed of sale to both buyer and vendor and oversees the transfer of funds for the transaction. In addition, the notary ensures that the Italian State receives taxes and fees in full. Finally, the notary registers the new deed of ownership at the land registry.
Why would a buyer need an avvocato for a property transaction?
Although it is not a legal requirement in Italy, as they would in their home country, many buyers appoint an avvocato to make sure their best interests are served throughout the three-step Italian property purchasing process.
A buyer’s avvocato will conduct thorough due diligence, searches and detailed checks on the buyer’s behalf and provide legal advice throughout the Italian property purchasing process.
Having your own lawyer ensures you get:
– the best contractual terms and conditions on the property
– deposit protection
– efficient and smooth conveyancing
– no hidden surprises along the way or later
If you are thinking of making a real estate investment in Italy, why not talk to us? De Tullio Law Firm can advise and guide you throughout your Italian property purchasing journey. We have over 55 years of experience working with clients on their Italian and cross border property, family and inheritance matters. Get in touch.
You might find our guide to buying property in Italy useful.
For more information about the Italian notary’s role in property transactions, visit the website.