How Can An English-Speaking Italian Property Lawyer Advise with The Purchase of A Property in Italy?
Buying a home anywhere, including Italy, is probably one of the largest and most significant investments you will make in your life. Italian property law is complex. It raises special issues of practice as well as points of law not present in other transactions and or jurisdictions. An English-speaking Italian property lawyer is a trained legal specialist, experienced at dealing with these problems.
The Italian property sales and purchase process
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 go through the real estate agent, who acts as an intermediary.
In the first stage of the Italian property purchasing process, the buyer and seller enter into a formal written contract for the sale, a reservation offer. The buyer pays a small deposit. Once the reservation offer is in place, the buyer undertakes initial due diligence. Amongst other things, this includes checking title deeds and ascertaining the property has all the correct planning permits.
The second stage in the Italian purchasing process is to sign a preliminary contract. This contains all the terms and conditions of the transaction and is a legally binding document. Another deposit is due at this stage.
The third and final stage is when all parties to the transaction sign the deed of sale in the presence of a notary. In effect, this is the transfer of ownership when the seller receives the remainder of the purchase price.
The Italian property sales and purchase process may seem straightforward. However, having a specialist Italian property lawyer specialised in Italian property on your side will help you avoid some common pitfalls.
Estate agency agreements
For example, a buyer may sign a brokerage agreement with a real estate agent that does not deal with a number of legal matters. This is a common occurrence. Estate agents often use standard forms, expecting that they will cover all circumstances. However this ‘one size fits all’ approach is not easily customisable for unusual circumstances.
In the absence of an agreement to the contrary, the buyer may be liable to pay a brokerage commission even if a sale does not occur, or to pay more than one brokerage commission. An English-speaking Italian property lawyer can explain the implications before you sign a brokerage agreement. In addition, your lawyer can negotiate the agent’s rights if the seller withdraws the property from the market, or can’t deliver a marketable title.
An English-speaking Italian property lawyer can execute title searches, explain the title, determine if the legal description is correct and whether there are problems with co-owners or prior owners. A lawyer can also explain the effect of easements, agreements or restrictions imposed by a prior owner.
In addition your lawyer can ascertain whether there are any legal restrictions. For instance zoning legislation may impair your ability to change use or make alterations to the property.
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.
You may have plans to alter, renovate or extend the property. It is important to ascertain that your plans are possible from a legal point of view. Your lawyer can help this and can engage a surveyor or architect to inspect the property to ascertain whether your plans are possible.
We would advise buyers to have a survey of the property. Not just structural but also measured. In addition, the survey should check for materials such as asbestos and lead-based paint and check the land for hazardous waste.
A buyer or seller may also find it useful to consult with a lawyer regarding purchasing structures, tax and inheritance implications of a cross-border transaction.
The preliminary contract is the single most important document in a property transaction
Because a preliminary contract is so important, it is crucial that it reflects the buyer’s wishes. Again, Italian estate agents tend to use standard printed forms for preliminary contracts. Although these are useful, we would advise you to consult a lawyer for an explanation and clarification of the form.
You may need to make changes or add tailored conditions to reflect your personal circumstances. For example, is your purchase contingent on being able to get a mortgage? Are there any alterations to the property? If so, are they lawful? Does the whole property have full planning permission? What are the legal consequences if completion is delayed or doesn’t take place? What happens to deposits? This also raises related questions. Who will hold the deposits? Will they held in escrow by the estate agent?
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. Once you sign a preliminary contract, it is not easy to back out of it and remember, you have paid deposits that you risk losing.
Deed of Sale
Completion 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. As such, the law requires notaries to remain impartial in all property transactions. They cannot therefore offer legal advice to any party to a transaction. A notary’s main tasks are to ensure that all documents are authentic. They also deal with registration and tax matters on behalf of the Italian State.
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 any unlawful work to a property – (abusivi). While a notary will check planning permission, a notary will not make a site inspection of the property to ensure there are no additional illegal work.
The notary will require the presence of a translator if any party to the transaction is not a fluent Italian speaker. Having an English-speaking Italian legal advisor means buyers benefit not only from translation ability, but also legal know-how and expertise.
The closing process can be confusing and crowded. Those present include the buyers and sellers, 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 without a lawyer, your rights may be at risk.
Conflicts of interest
Perhaps the most important reason to engage a lawyer is conflicting interests of the parties. Throughout the process, a buyer’s and seller’s interests can be at odds with each other.
The estate agent generally serves the seller. Both the seller and estate agent want to close the deal since this is how they will get paid. Because of this, we would advise you to choose your own English-speaking Italian property lawyer rather than one recommended by the estate agent or vendor.
If you are looking at 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.