Tag Archive for: Italian Property Law

Partition of an Italian estate. Inheritance Law

/in , , , , /by

How does the partition of an Italian Estate work?

In this article we explore the partition of an Italian estate. A testator’s estate comprises assets and rights.

Whenever there is more than one heir in an Italian will, this triggers a condition of joint-ownership of rights and duties.

The co-heirs receive the estate in accordance with their inheritance quota.

This quota may be in  accordance with a will or, where the deceased was intestate, in accordance with Italian inheritance law. Beneficiaries inherit not only assets but also take on any liabilities of the testator.

Get Your FREE Guide to Planning Your Inheritance in Italy

Our PDF guide explains the ins and outs of preparing your inheritance under Italian law

Download now

Partition of an Italian estate refers to the division of assets and liabilities between beneficiaries

At this point, it should be noted that each co-heir has the right to request the partition of an estate at any time following the death of the deceased, unless otherwise stipulated in a will.

As a result, all co-heirs, or their successors (legatees), must take part in the partition of an estate. Failure of one or more beneficiaries to participate, will render their rights invalid. As a matter of fact, absentee co-heirs cannot later rectify this.

According to Italian legislation, the partition of an estate can be executed through three methods:

1. Amicable partition

In order to convert co-heirs’ legitimate rights to a quota of the estate into rights on single assets from the estate, an amicable partition can be made. This would be in the form of a contract. The contract then ensures that the value of the assets individually assigned (known as de facto quotas) equate to the value of the joint ownership quotas.

2. Judicial partition

Should co-heirs disagree on the the partition of an estate, each of them can refer it to the courts. A judgment regarding the partition of an estate may include a number of options. For example:

INVENTORY OF THE INHERITED ESTATE

This includes all the assets and/or liabilities left to the co-heirs by the deceased.

APPRAISAL OF ASSETS

This determines the market value of assets. The testator may have nominated a person or organisation in a will to conduct the appraisal. No estimates are necessary if assets belong in the same asset category. However, in other cases, the estimate of individual assets is essential in order to make portions of value corresponding to the quota of each co-heir in the decedent’s will.  If the decedent died intestate, apportionment is according to Italian inheritance law.

POSSIBLE SALE OF INDIVISIBLE ASSETS

Prior to the partition of an Italian estate, it may be necessary to sell real estate property or to assign property to one of the co-heirs in return for payment. Co-heirs would then receive the proceeds to make up their share of inheritance.

3. Testamentary partition

A testator can stipulate in a will, either the portions to assign to each co-heir, or can simply lay down terms in order to set quotas.

Because the effective value of a testator’s assets may not cover the quotas stipulated in a will and co-heirs dispute the partition of an estate, they have the same recourse: amicable or judicial partition.

Finally …

As a co-heir, it may be difficult for you to manage succession procedures or participate in the partition of the estate in Italy. You can confer a Power of Attorney to sign inheritance documents and paperwork. A specialist Italian inheritance lawyer can assist you and will work in your best interests.

You might find De Tullio Law Firm’s comprehensive Guide to Italian Inheritance useful. If you would like to discuss your situation, you can get in touch with us for a free consultation.

You may also beinterested in Accepting an inheritance with the benefit of inventory in Italy

Off-Plan Property in Italy. Preliminary Contract Checklist

/in , , /by

Investing in an off-plan property in Italy

Investing in an off-plan property in Italy entails a buyer commiting to buy a property from developer that has not yet been built or that is in the process of construction.

This type of investment hides a number of risks, the major one being that the developer goes into administration during construction of your property and you lose any money you have already invested.

Off-plan property in Italy. Checklist for preliminary contracts

Legislative decree 122/2005 introduced very strict rules concerning buying an off-plan property in Italy. Article 6 of the above mentioned legislative decree states that the preliminary contract for an off-plan property in Italy should contain key elements. A preliminary contract is a legally binding document. Before you sign one, make sure it contains all of the following items.

Ready to Buy a Property in Italy?

Download your FREE copy of our guide to buying Italian property

Download now
A full description of the parties to the transaction

Not only the buyer but also the builder and/ or developer.

Property details

Identification details of the property including cadastral plot references.

Property description

A description of the property including outbuildings for the exclusive use of the buyer.

Building permits

Details relating to the building permit or application for a building permit. In addition, the law explicitly requires the mention of any issue associated with the building permit.

Technical specifications

All technical data relating to the building. The law requires a summary of technical specification in the preliminary contract. Full data must be in an attachment (capitolato). These specifications cannot be modified without the agreement of both parties.

Completion

Deadline date for when the construction will be complete.

Payments

Method of payment. Not only the total price but also a payment plan for deposits and installments. Buyers should only use bank transfers or other traceable methods of payment.

Bank guarantee

Full details of the bank guarantee. Buyers should receive the bank guarantee when they sign the preliminary contract. The guarantee should therefore be in place prior to, or at the latest upon signing the preliminary contract.

Loans

All mortgages or other types of loan for the development. Where a mortgage for the whole development is in the name of the construction company or developer, the company must divide it among all the buyers. Unless this is the case, the notary will not legally be able to sign the deed of sale.

Contractors

A full list of the contractors involved in the construction along with proof of their identities.

Checklist for preliminary contract attachments

As attachments to the preliminary contract buyers should also have the previously mentioned full technical specifications of the property. This should detail all the construction materials as well as listing all the agreed finishes and fittings. In addition, there should be a copy of the plan submitted to request building permits.

What if the preliminary contract lacks one of the elements set out in art. 6?

A preliminary contract not in compliance with the requirements of article 6 may be null and void because it breaches Italian legislation.

Since the above mentioned legal requirements are set out in order to protect the interests of the buyer, only the buyer can object to the validity of the preliminary contract.

Finally …

There are a number of risks involved in off-plan purchases. We have written several articles  about off-plan property purchases in Italy. You can use our search tool to find more on the subject of buying an off-plan property in Italy.

At De Tullio Law Firm, we are property law specialists. We operate throughout Italy. We would always recommend that you engage your own lawyer to ensure that you protect your interests. Before signing any off-plan property-related paperwork, including a preliminary contract, you should seek independent legal advice. If you are unsure about any aspect of your off-plan property purchase in Italy, we are here to help.

You may also like to watch our info videos about buying property in Italy.

Off-Plan Property in Italy. The Italian Law

/in , /by

The main risk with off-plan property purchases in Italy

Another in our series on the important issue of off-plan property purchases in Italy. Use our useful search tool to find our other articles on off-plan property purchases.

Investing off-plan is where a purchaser makes a commitment to buy a property from a developer that has not yet been built or is in the process of being built.

This type of investment can hide any number of risks.

The main risk is that if the developer becomes insolvent, the buyer may well end up out of pocket.

Ready to Buy a Property in Italy?

Download your FREE copy of our guide to buying Italian property

Download now

Guarantees for Italian off-plan property

Italian legislation provides a number of measures to protect buyers if the developer goes bankrupt. However, the onus is on the buyer to ensure that these protections are in place.

Guarantee on deposits

Law 122/2005 declares the obligation of the developer to offer a surety bond. This provides a guarantee to the buyer for deposits prior to the transfer of ownership of the property.

Furthermore, in accordance with art.1 of Law 122/2005, the developer must offer the surety bond at the latest when the preliminary contract.

All Italian off-plan property purchases must have a preliminary contract. A surety bond must be in place by the time buyers sign the preliminary contract. The developer must clearly reference the surety bond in the preliminary contract. If there is no mention of a surety bond, the preliminary contract is invalid unless, the buyer explicitly expresses that it should prevail.

According to article 2 of Law 122/2005 surety needs to be a bank, an insurance company or a financial broker authorised by the Bank of Italy. The surety bond guarantees the buyer repayment of all money paid as deposits.

In order to request an excussion of the guarantee, the buyer must first formally withdraw from the preliminary contract. A buyer’s written request to withdraw, together with evidence of deposit payments, is sufficient to activate the guarantee. Italian legislation stipulates that the surety provider should refund all deposits within 30 days.

Guarantee for building defects

According to art.3 of Law 122/2005 the surety bond also covers damages arising from building defects. This includes any damage the buyer discovers after signing the deed of sale.

Article 1699 of the Italian civil code covers building defects. The guarantee for defects has a statute of limitations of ten years from the finalisation of the building work in question.

Where the seller is a different legal entity from the developer of the property

The seller is legally required to request a copy of the surety bond from the developer and provide this to the buyer. This is part of the seller’s contractual obligations and must be referenced in the deed of sale.

Finally …

If you are considering investing in off-plan property in Italy, our advice is to engage your own independent legal adviser. Bear in mind that a lawyer recommended by a developer or seller may have a conflict of interests in this matter so we advise you to choose your own lawyer. If you need any help, we are here to help.

For more comprehensive information about the Italian property purchasing process, you might like to read our guide. You may also like to watch our info videos about Italian property law.

 

Off-Plan Properties in Italy. Advice

/in , /by


This article was originally provided by De Tullio Law Firm to the British Consulate in 2011. While the article pertains to a Calabrian case, information is relevant to off-plan properties throughout Italy.

If you are looking for additional information about off-plan properties purchases in Italy, you will find a series of articles on the subject if you use our search tool, including a post here about your legal position regarding delivery delays.

Buying off-plan homes in Calabria

A large number of British citizens who have bought holiday property in Calabria have recently contacted the British Consulate in Naples. Many of these transactions have been completed to the satisfaction of the purchasers but, a significant number have run into difficulties with the lawyers involved or with the developers. The Consulate has drawn the matter to the attention of the Italian authorities who are investigating, but we strongly advise purchasers encountering problems of this sort to seek legal advice about obtaining redress.

Advice for anyone purchasing off-plan properties in Italy

Seek legal advice before signing a contract and paying any money upfront

Once you have signed a preliminary contract, it may be too late. Choose your own independent lawyer. We advise you not to use lawyers recommended by the developer or contractor so as to avoid possible conflicts of interest.

Get Your FREE Guide to Buying Property in Italy

Our PDF guide covers every aspect of the buying process so you're ready to purchase with confidence

Download now

Use an independent Notary Public

You do not have to use the notary proposed by the developer or contractor for the deed of sale. In fact, to avoid possible conflicts of interest, we would advise against this. Choose your own notary.

Remember that the Italian version of the contract will prevail in an Italian court

So, either commission the translation yourself from an independent translator or, get any translation you receive checked by an independent qualified person.

Deposit

The amount you pay as a deposit for an off-plan development should be up to around 10%. Seek legal advice if you are asked for more than that.

Stato avanzamento lavori

As the building work progresses, the developer should accompany any request for further payments with a list of the work done (‘stato avanzamento lavori’). Ask an independent surveyor or architect to check the list before you make any payment. The preliminary contract should include a payment plan.

Surety and guarantee

When you buy an off-plan property, you should receive a bank loan guarantee. This must be an annex to the preliminary contract. If the developer becomes insolvent, this bank loan guarantee will often represent the only protection you have for your investment. If you have already received a bank loan guarantee, have a qualified professional check that it complies with Italian law.

Finally …

At De Tullio Law Firm, we are Italian and cross border property law specialists. We operate throughout Italy. If you are considering investing in off-plan property in Italy, please get in touch with us for a free consultation. We are here to help.

Building Defects in Italy. Who Is Liable?

/in , , /by

A professionally drafted contract is your best protection against any faults with Italian construction work


Building defects include the use of shoddy materials, poorly executed work, deviations from an agreed plan or a request for additional money.

The best advice we can therefore offer before you enter into any arrangement with a construction, building or renovation company is to call your legal advisor.

A professionally drafted contract in both English and Italian will prevent a lot of problems, reduce stress and often save you a considerable amount of money.

A summary of Italian legislation covering building defects

The contractor is responsible for defects and unauthorised variation of construction work. If there are visible defects, you should not accept the work. If you do, you lose the right to claim on the guarantee (art. 1667, first paragraph of the Italian civil code).

Get Your FREE Guide to Buying Property in Italy

Our PDF guide covers every aspect of the buying process so you're ready to purchase with confidence

Download now

In order to formally contest the construction work, you should request your legal advisor to notify the contractor through a formal letter of default. If you accept work with visible defects and/or unauthorised variations of work, you will lose the right to trigger the guarantee unless the defects and variations were caused with malicious intent. A contractor is considered to have acted with malice if, despite being aware of the defects and/or variations, the contractor fails to point these out to the client.

Hidden building defects

The acceptance of work does not compromise your guarantee in the case of hidden defects. You can contest hidden defects when you discover them. A client will need a lawyer to take action in order to make a claim on the guarantee. 

– Report the hidden defects within 60 days of their discovery.

– Take legal action within 2 years from the completion of the work.

If a client does not comply with both of the above mentioned obligations the client will lose the cover of the guarantee. In cases where the contractor not only neglects to point out the defects but also acts in a malicious manner to hide the faults, the time limit for legal action extends to 5 years.

Fault of the contractor 

Once the client proves the defects and/or the unauthorised variations, there is a presumption of fault against the contractor. It is then the contractor’s responsibility to prove any absence of negligence.

Guarantees

According to article. 1668 of the Italian civil code, in the case of visible or hidden defects the client has 4 possible courses of action.

– Request correction with the contractor bearing the total cost.

– Request a price reduction.

If variations or building defects are serious the client can:

– Request the termination of the contract and,

– Request compensation for damages.

Responsibility of the contractor for new build properties

Article 1669 of the Italian civil code provides particular regulations for new buildings. For new builds, the contractor is liable for collapse (total or partial), evident danger of collapse or serious defects in construction.

Jurisprudence extends liability to renovation work which can be expected to be durable. This, for example would include roof waterproofing and floor and wall tiling. The contractor’s responsibility increases to a period of 10 years from the date of completion of the work. Any faults should be contested formally with a letter of default drafted by your lawyer to the contractor within 1 year of discovering them.

Italian Law stipulates that the client has one year from the recorded delivery of a letter of default to starting legal proceedings against the contractor. Once the client has highlighted serious defects, there is a presumption of liability against the contractor. The contractor must prove the contrary.

Examples of serious building defects 

There is significant jurisprudence defining the meaning of “serious defects”. In broad terms, the definition of serious defects is work that seriously compromises the use of the property or has a significant impact on essential structural elements such as stability, efficiency and duration of work. Here are some examples of serious building defects classified in Italian jurisprudence:

– Detachment and rupture of a significant number of tiles.

– Defects concerning the roof of the property causing infiltrations of water.

– Faulty heating system.

– Inadequate thermal insulation.

– Faulty plumbing system.

– Defects of the chimney or flue.

Inspecting construction work 

Article 1665 of the Italian civil code provides the client with the option to inspect completed work before signing-off on it. This right of inspection also extends to work in progress. We would recommend that you involve your lawyer and an independent surveyor in this process before accepting any work.

Article 1665 par. 4, states that where the client accepts the work at the point of signing-off without requesting an inspection or without contesting work, there is a presumption that the client has accepted the work. If the client accepts the work without any formal objection, this constitutes an implicit acceptance. As a consequence, the client loses the guarantee for visible defects or unauthorised variations. There is however an exception for malicious or undeclared issues. In addition, acceptance of work means the client must pay the contractor for the work.

Finally …

For problems concerning your Italian property renovation or construction work, please do not hesitate to contact De Tullio Law Firm. We are Italian property law specialists. We offer legal assistance throughout Italy. While it is always best to engage independent legal services prior to starting a renovation or construction project, contacting a lawyer as early as possible in a dispute can often lead to a settlement thus avoiding lengthy and costly litigation in the Italian courts.

 

You may also be interested in Off-Plan Property in Italy: Insurance And Guarantee. In addition, we have a number of info videos that you may like to watch.

Real Estate Transaction in Italy. Legal Translations

/in , /by

An accurate understanding of the Italian legal system is essential for a translator dealing with an Italian real estate transaction


All legal documents relating to an Italian real estate transaction must be in Italian, regardless of the nationality of the parties.

Italian legal writing is highly technical, ritualistic and often archaic due to close links with Roman Law. Legal language can seem obscure for people without a solid legal background in Italian law. 

There are huge differences between Common Law and Italian Civil Law. This can add to the confusion. In fact, there are legal concepts in Roman Law that simply do not exist in Common Law and vice versa. There are concepts bearing the same name in the two systems but with different meanings.

Get Your FREE Guide to Buying Property in Italy

Our PDF guide covers every aspect of the buying process so you're ready to purchase with confidence

Download now

An accurate understanding of legal systems and processes is therefore essential for translators or interpreters dealing with Italian real estate transactions. Translators require an in-depth knowledge of specialist terminology as well as knowledge of legal concepts. 

This is why you should never sign a legal document without a lawyer to explain commitments in your own language.

Italian versions of contracts prevail in a court of law 

Italian real estate agents often use pre-printed contracts with an English translation. In reality, these translations are rarely faithful and can often be misleading for the buyer. It’s important to underline that in case of litigation, the Italian version of any contract will always prevail in a court of law.

In the most crucial completion phase of the real estate transaction, you will have to sign the deed of sale in the presence of a public notary. The Italian law requires the presence of an interpreter if one or more parties does not speak fluent Italian.

Our advice is to make sure that your interpreter is qualified not only from a linguistic point of view, but also in terms of legal background.

Another crucial aspect to bear in mind is the independence of the interpreter in order to avoid any conflict of interest. This precludes using the real estate agent, a relative or a friend of any parties involved in the transaction.

Finally …

Engaging a bilingual property lawyer will ensure you have the right expertise throughout your Italian real estate transaction. Your lawyer will always make sure you have a full understanding of all documents before you sign them. In addition, a lawyer can act as your interpreter to explain all the legal ramifications. If you need any assistance with your property purchase in Italy, Please get in touch.

Insurance Policy for Off-Plan Properties

/in , , /by

What defects does an off-plan insurance policy cover?

In accordance with article 4 of legislative decree 122/2005, a construction company must provide off-plan property buyers with an insurance policy.

Essentially, this is a guarantee which covers any serious construction defects. The guarantee should provide 10 years of cover.

Off-plan buyers should obtain the insurance policy when the transfer of ownership takes place.

Because by law, a notary public must handle completion of Italian property conveyancing, we would advise you to request that the notary explicitly references the insurance policy in your deed of sale.

What constitutes a serious construction defect?

The notion of serious construction defects has developed substantially over time. This is thanks, in large part, to jurisprudence. Originally, the notion only included defects involving prejudice to the safety and stability of the property.

Get Your FREE Guide to Buying Property in Italy

Our PDF guide covers every aspect of the buying process so you're ready to purchase with confidence

Download now

However, nowadays, the notion has a wider meaning. It therefore includes all defects that can be defined as provoking significant detriment to the use of the property. Consequently, the guarantee should cover any damage that might impact the owner’s regular, day-to-day use of the property.

Does the insurance policy also cover the use of poor quality materials?

If the construction defect impacts on the regular use of the property, it may involve secondary elements of the construction. Thus, if the fault inhibits an owner’s ability to live in the property and implies maintenance work, the use of poor or inadequate materials may also constitute a serious defect.

For example, floor tile detachment in some areas of a property may constitute a slip and fall hazard. Another example could be poor sealing of the roof which allows water ingress. Both examples clearly demonstrate that the notion of serious construction defects is quite broad.

Who can make a claim on an off-plan insurance policy?

The law limits the right to make a claim on a serious defect insurance policy to buyers who are private individuals. According to a more restrictive interpretation of the law, the buyer should be a “consumer”. In other words, an owner can only claim on the insurance policy if they purchased the property for personal use. The insurance policy excludes tenanted, entrepreneurial or professional use of the property.

Finally …

There are many risks related to buying off-plan property in Italy. We have written a number of posts on the subject, which you can access using our search tool.

Off-plan property purchases in Italy are complex. There are many hidden risks. We would therefore always advise that you seek independent legal advice before signing any documents or paperwork.

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.

For more comprehensive information about the Italian property purchasing process, you might like to read our guide. You may also like to watch our info videos about Italian property law.

English-Speaking Italian Property Lawyer

/in , /by

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.

Get Your FREE Guide to Buying Property in Italy

Our PDF guide covers every aspect of the buying process so you're ready to purchase with confidence

Download now

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.

Due Diligence

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.

Finally …

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.

Leasehold or Emphyteusis in Italy: What You Should Know

/in , /by

Emphyteusis is a type of leasehold arrangement

The closest Common Law legal term to Emphyteusis is a leasehold.

The landlord retains the ownership of property. However, a tenant has the right to use it for a contractually agreed period of time. In this type of leasehold or Emphyteutical arrangement, the tenant must both maintain and improve the property.

Leasehold or Emphyteusis is a contractual arrangement which has its roots in Roman Law. It formed part of the feudal system and has connections to the agricultural economy. Farmers had the possibility to cultivate land thereby sustaining themselves. In return, farmers paid an annual ground rent or canon in money and or in kind.

Italian leasehold or Emphyteusis arrangements are applicable to all types of physical assets

Contractual arrangements exist between two parties. On the one hand, the Dominium Directum, the freehold owner the (dominus) or landlord of the property. And, on the other hand, the Dominium Utile – the tenant (emphyteuta) who has the right to use property on a leasehold basis.

Emphyteusis is applicable to both land and buildings, including villas and apartments.

For the duration of an Emphyteusis contract, where land is involved, the tenant has the right to alter the surface of the land. This includes ploughing up pastures to cultivate a crop or plant trees.

Where the arrangement concerns buildings, a tenant may alter these. However, alterations must not cause any deterioration of the building. Therefore, if the tenant wishes to build an extension or add to existing structures, the tenant may do so.

Get Your FREE Guide to Buying Property in Italy

Our PDF guide covers every aspect of the buying process so you're ready to purchase with confidence

Download now

The contract between the ‘landlord’ and the ‘tenant’ must be in writing. Rent payments are recurring and the duty to pay rent only ceases if the estate is destroyed. Destruction may either be due to human causes  such as a fire or through natural events for example, an earthquake.

Duration and obligations of leasehold or Emphyteusis contracts

Emphyteusis can be in perpetuity or limited to a minimum of 20 years. In either case, entitlements are the same.

In other words, a tenant may sublet the property, receive compensation for improvements made and even retain the property until full payment of his credit is rightfully received. These things, as well as those previously mentioned, do not require the consent of the landlord.

If the Emphyteusis has a duration of 20 years, the tenant cannot contractually transfer rights to another party. The right of pre-emption does not apply to the tenant in the same way it does to farmers. This means that the tenant in a leasehold or Empyteutical contract arrangement does not have right of first refusal to purchase land.

The tenant has a very broad right to dispose of the property held under perpetual Emphyteusis. Thus a tenant may dispose of the emphyteutical property by means of a deed in compliance with Italian Civil Code. This can either be an act inter vivos, i.e. made during the tenant’s lifetime, or causa mortis, i.e. after death. In the event of death, disposal is by means of a will.

Redemption of leasehold or Emphyteusis contracts

A tenant can acquire full ownership of Emphyteutical property through the payment of a price corresponding to fifteen times the annual rent. A tenant can make use of this redemption right at any time.

This redemption right prevails as an equivalent right accorded to the landlord in case of breach of contract by the tenant, known as the “devolution” (devoluzione).

Redemption may be settled either out of court, by means of an agreement between the landlord and tenant. A notarised deed must reflect the settlement. Where the landlord and tenant cannot reach agreement, the dispute can be settled in court.

Check the title deeds of an Italian property before you buy

A tenant must increase the productivity, the usefulness or the value of the estate, rural or urban. This obligation lasts for the duration of the term of Emphyteusis and must be in writing. Annual rents to the landlord are payable annually.

The landlord has the right to request the end of the Emphyteusis due to a breach of contract by the tenant. The landlord must refund any improvements the tenant has made. Payments should be proportional to the increase of value of the estate when it returns to the landlord.

Finally …

Acquiring, redeeming or disposing of property subject to leasehold or Emphyteusis arrangements can present challenges. Other types of leasehold arrangements also exist in Italian law. It is advisable that you contact an Italian lawyer to ensure you understand all the implications of such arrangements.

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. We are here to help.  Get in touch with us.

For more comprehensive information about the Italian property purchasing process, you might like to read our guide. You may also like to watch our info videos about Italian property law.

Italian Notary

/in , , /by

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.

Get Your FREE Guide to Buying Property in Italy

Our PDF guide covers every aspect of the buying process so you're ready to purchase with confidence

Download now

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

Finally …

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 Consiglio Nazionale del Notariato website.