Posts

Unauthorised Construction in Italy Is A Criminal Offence

Unauthorised construction in Italy is not uncommon

Unauthorised construction in Italy is a common issue that you might have encountered if you have bought, or are in the process of buying, an Italian property.

What constitutes unauthorised construction in Italy?

unauthorised construction in ItalyIn general terms, unauthorised construction occurs when someone makes changes to a property without obtaining legally required permission.

Depending on the seriousness of the offence, a range of sanctions is applicable. There are three categories of unauthorised construction offences in Italy.

1) Total violation

Work without a building permit or where the work is in total breach of permission. In other words, there is no permit or the building completely differs from the provisions of the permit.

2) Substantial violation

This is work that substantially diverges from the building permit. The work comprises significant qualitative and quantitative differences compared to the authorised project.

3) Partial violation

Here, work partially deviates from the building permit. That is to say, although the work has authorisation, it is not in accordance with the permit.

Unauthorised construction in Italy is a criminal offence

All of the above violations are criminal offences. As such, they are subject to criminal prosecution as well as sanctions. Building offences are punishable not only with administrative sanctions but may also involve arrest and a fine.

In some cases, where someone has unlawfully developed land not zoned for construction purposes, a judge may order the confiscation of the land and property. The land and property therefore become the property of the local municipality and owner receives neither compensation nor damages.

Article 44 of the Consolidated Law on Construction (Presidential Decree no. 380/2001) provides for fines ranging from a minimum of €10,328.00 to a maximum of €103,290.00 depending on the type of offence. In addition, offenders may receive a custodial sentence of up to two years.

Remedial action is possible

For example, you may have increased the volume of your property or carried out renovation work without following the legally required administrative procedure. Or, perhaps you have inherited a property along with zoning and cadastral discrepancies. In both cases legal remedies are available.

Regarding total and substantial violations of building permits you will need a, “Permesso di Costruire in sanatoria”. This may provide an amnesty (condono) which regularises the property. However, this remedy is not applicable to properties in heritage zones or on land in zones where property development is unlawful.

The process of obtaining a Permesso di Costruire in sanatoria is both complex and costly. It involves paying the municipality the normal fee to obtain a building permit to start a new construction project. In addition, penalty payments may amount to double the fee for a building permit. Precise amounts are set by the Italian Regions in accordance with the Consolidated Law on Construction.

A CILA offers a retroactive remedy for partial violations. CILA stands for Comunicazione Inizio Lavori Asseverata (Notice of commencement of certified works). It is a notice you must submit to the municipality prior to undertaking non-routine work on a property. For example, work that does not change the structure of the building but impacts internal layout.

If you submit a CILA once work has started or after the work has finished, this is a CILA “in sanatoria”. Because it is a communication after the event, it entails a fine. €1,000 if the work is already complete and a penalty of €333.33 euros if the work is still in progress.

Finally …

The Office for Italian Statistics (ISTAT), estimates that nationally, some 20% of Italian properties constitute unauthorised constructions. Even more in the southern regions of Italy. On top of these statistics, many properties partially violate legal requirements. For example, they comprise an unauthorised outbuilding or extension.

When you buy an Italian property, it is impossible to tell if there is any unauthorised construction work just from viewing it. To avoid issues such as finding your property is difficult to sell or even unsaleable later on, you should check municipal planning and zoning records and land registry files to ensure that the whole property has all the relevant consents.

The key to making your Italian property project as safe and smooth as possible is to appoint a legal team that speaks your language. De Tullio Law Firm has a thorough understanding of Italian property law and decades of experience managing Italian property transactions.

Get in touch with us: info@detulliolawfirm.com

You may also be interested in Italian Property: Who Is Liable for Defects in Building Work in Italy?

Energy Performance Certificate in Italy

What is an Italian Energy Performance Certificate?

If you are purchasing a property in Italy, an Italian Energy Performance Certificate (EPC) –  Attestato di Prestazione Energetica (APE)  is an essential document.

In Italy, only an accredited engineer or surveyor can issue an EPC. As well as describing various aspects of the property such as its dimensions, condition and age, an EPC estimates energy costs for an average household. For instance, costs for lighting, heating and hot water.

An EPC provides an assessment of energy efficiency on a scale ranging from A to G. Category A is the most efficient and G is the least efficient.

Is an Italian Energy Performance Certificate mandatory?

EPC certificateItalian law made EPCs mandatory in 2013.

An EPC helps inform the sale or purchase price of an Italian property.

When buying a property in Italy, we highly recommend that you ask to see its EPC as part of your due diligence. You should see the EPC before  you sign a deed of sale.

An EPC is valid for 10 years and the onus is on the seller or landlord to provide a potential tenant or buyer with an EPC.

How do you get an EPC in Italy?

In order to obtain an EPC, you need to engage a technician accredited by the relevant Italian Regional authorities. By law, only accredited technicians can issue an EPC certificate in Italy.

In order to issue an Italian EPC, the technician performs a site inspection of the property to assess it. The technician evaluates heat transfer and the health and safety of indoor environments.

Following a thorough analysis, the professional determines which category the property falls into and enters this on an EPC form. The EPC is then delivered to the new owner or tenant of the property.

Do I need an EPC to rent or buy an Italian property?

When buying or renting a property, it is important to view its EPC so that you can budget for heating and power. This way you can estimate future costs of your utility bills.

Finally …

If you would like more information about the Italian EPC, you can read more here or, get in touch with us at info@detulliolawfirm.com We are legal specialists for Italian property matters.

Biometric Residency Card for UK Nationals Living in Italy

What is the biometric residency card?

The Italian government has introduced an electronic residence document with biometrics for UK nationals and their family members resident in Italy.

If you are a UK national and were living in Italy before 1st January 2021, you have the right to obtain an electronic residency card.

Family members of UK nationals who were resident in Italy by 31st December 2020 can also get an electronic residency card and, any family members joining UK nationals resident in Italy, even after the aforementioned date, are also entitled.

Why do I need a biometric residency card?

The electronic residency card will provide further evidence of your rights under the Withdrawal Agreement and it will save you having to carry other papers such as your Attestazione di iscrizione anagrafica and/or your Permesso di soggiorno when you exit and enter Italy.

How do I obtain a new biometric residency card?

You will need to apply for a biometric residency card. First, you need to book an appointment by sending a PEC email to your Immigration Office of the Police Headquarters (Questura) in the province of your residence.

You will need to attend your appointment in person. In order to issue a biometric residency card, you will have to supply biometric data in the form of fingerprinting.

The biometric residency takes some time to prepare. You will need to return to the questura to collect it when it is ready. Collection requires another check of your fingerprints so you will have to go in person to pick up your biometric card.

How do I apply for a biometric residence card?

You will need to take the following to your appointment:

A valid identity document. If this is your UK passport, you will need to ensure that it has at least 6 months validity. If not, you will need to renew your UK passport;

Attestazione di iscrizione anagrafica, issued by your Municipality of residence, which proves registration by 31st December 2020; or, alternatively, self-certification of being registered with the anagrafe by 31st December 2020 and that registration has not been subsequently cancelled, pursuant to art. 46-47 D.p.r. 445/2000;

Permesso di soggiorno permanente if you have one or, alternatively, self-certification of being registered with the anagrafe by 31st December 2020 and that registration has not been subsequently cancelled, pursuant to art. 46-47 D.p.r. 445/2000;

Receipt of payment of € 30,46 for the cost of producing the document. Payable by postal order on CC no. 67422402 (account holder “MEF DIP.TO DEL TESORO VERS: DOVUTO RILASCIO CARTA DI SOGGIORNO” – reason for payment: “Importo per il rilascio della carta di soggiorno – Accordo di recesso UE/ UK”);

4 passport-sized photographs.

Validity of biometric residency cards

For UK nationals resident in Italy less than 5 years, the electronic residency card is valid for 5 years. The card you receive will show the title, “residence card”.

If you are a UK national who has acquired legal and uninterrupted residence in Italy over a period of 5 years or more, including periods of stay before or after 31st December, 2020, the electronic residency card will be valid for 10 years. The card you receive will show the title, “permanent residence card”.

Finally …

We can help you with enquiries and support you through the process to obtain an Italian electronic residency card. Please get in touch with us.

 

You may also be interested in How do UK nationals obtain permanent Italian residency?

Personalise Your Preliminary Contract When Buying Italian Property

Should you use a one size fits all preliminary contract for your Italian property purchase?

Italian Property Law: Personalise Your Preliminary Contract with Conditions

Before you sign a preliminary contract for an Italian property purchase, it is crucial to think about your personal situation. For example, is your purchase contingent on getting a mortgage or do you need to sell another property in order to complete this purchase? If your purchase is subject to certain circumstances, you should personalise your preliminary contract by adding conditions precedent.

Italian estate agents often use a standard preliminary contract template. This type of one size fits all preliminary contract may not be appropriate for your situation.

In fact, generally speaking, this type of standard preliminary contract may expose you to legal risks and financial penalties. In a worst-case scenario, you may end up in court.

Tailor the preliminary contract to fit your specific needs by adding conditions precedent

Conditions precedent protect all parties when buying and selling property in Italy. However, to provide protection, conditional clauses must actually be written into the preliminary contract in order for them to be legally binding.

During the due diligence process, if you find you are unable to meet the conditions precedent in the preliminary contract, you may withdraw from the purchase process. Examples of conditions precedent include:

– a property purchase being contingent on the buyer obtaining approval for a mortgage

– a buyer needing to complete the sale of another property to free up funds for the deal to proceed

– a buyer agreeing to purchase a property if it passes a property inspection and/or survey

– an offer hinging on approval from the local authorities for zoning and building permits for improvements such as changing the internal layout, an extension or installing a swimming pool.

What sort of conditions are valid in an Italian preliminary contract ?

Any condition precedent must be objective and cannot depend exclusively on the will of one of the involved parties.

According to Italian law, a condition is null and void if it is considered as merely potestative, i.e. it is considered as being in the sole interests of only one of the parties to the contract.

The most frequent and important example of a condition precedent in Italian preliminary contracts relates to mortgage approval. It is clear that all parties to the transaction stand to lose out if the buyer cannot obtain a mortgage. Under Italian law, this condition precedent cannot be classified as a purely potestative condition.

If you are not fully certain of having the financial means necessary to complete your real estate investment and you are negotiating with a bank to obtain a mortgage or, if you need to sell another property to finance the purchase, we strongly advise that the preliminary contract should indicate this as a condition precedent.

We would recommend that you personalise your preliminary contract with conditions that fit your situation. You should always seek independent legal advice if you are buying property in Italy. Have your lawyer examine all paperwork before you sign anything.

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.

 

You may also be interested in Buying property in Italy

De Tullio Law Firm. Italian And Cross Border Legal Specialists.

De Tullio Law Firm. Solid, strong, stable legal expertise

At De Tullio Law Firm we provide independent legal advice in all areas of the law. The majority of our work focuses on managing a wide range of Italian and cross border legal matters. We are specialists in property, family and inheritance law.

A passion for the law led us here

De Tullio Law Firm: Combined experience of 55 years

Giovanni De Tullio. Founding Partner at De Tullio Law Firm.

Giovanni De Tullio founded De Tullio Law Firm in 1965. In addition to being a lawyer, Giovanni was a notary (notaio) for over 30 years. As a result, Giovanni brings tremendous experience and knowledge of Italian legislation to the team. Whether clients are purchasing or selling a home, gifting a home to a child, making a will or incorporating a company in Italy, Giovanni’s understanding of the Italian State’s requirements is an invaluable resource.

Following in his father’s footsteps, Giandomenico De Tullio also became a lawyer.

Giandomenico De Tullio. Managing Partner.

After a decade working overseas at international legal firms, as well as at the European Commission, Giandomenico joined Giovanni at De Tullio Law Firm.

Aside from being a member of The Italian Bar Association, Giandomenico is also a full member of Society of Trusts and Estate Practitioners. STEP is the world’s leading professional body for practitioners in the fields of trusts, estates and related issues.

Giandomenico is also an active representative in a number of not-for-profit government organisations whose aim is to develop and promote economic and cultural relations.

Right beside you

Because we have over 55 years of experience providing independent legal advice, we understand that property investments, or planning inheritance is not just a complex legal journey but also a personal one.

Our knowledge of Italian and cross border property, family and inheritance law gives us unique insights into the processes involved. We pride ourselves on giving each of our clients the individual care that their case deserves.

Thanks to the dedication of our lawyers, associates and professional staff, we offer an extraordinarily high level of service, responsiveness and attention to detail.

De Tullio Law Firm. Serving clients worldwide

Clients include both individuals and companies seeking legal advice, support and services. Our multi-lingual team serves clients throughout Italy.

Finally …

Thank you for visiting our website. We hope you find the information useful. If there is anything you would like us to cover in an article or, if you would like to discuss a legal matter with us, please get in touch. We look forward to hearing from you.

Attestato di prestazione energetica (APE)

An Attestato di Prestazione Energetica is the Italian for an Energy Performance Certificate

Attestato di prestazione energetica (APE)

An Attestato di Prestazione Energetica (APE) describes the energy characteristics of a property.

In Italy an APE is mandatory in order to sell or let a property.

When is an APE mandatory?

An APE is a legal requirement that came into effect on 1st July 2009 for property sales and 1st July 2010 for property lets.

Since January 2012, real estate advertisements must include a property’s energy performance index (value in kWh / sqm per annum).

In most cases, an APE is valid for 10 years. In order to maintain the validity of the Attestato di Prestazione Energetica, property owners must have their boilers serviced in accordance with requirements of the Italian law.

How do you get an Attestato di Prestazione Energetica?

An APE can only be issued by a qualified professional called a,  “certificatore energetico”. Italian Regional administrations are responsible for training and accrediting technicians according to their own regulations.

At the time of writing, about half of the Italian Regions have yet to adopt their own regulations. Where a Region hasn’t implemented its own regulations, national law (Legislative Decree 192/05) applies.

The certificatore energetico is a technical expert with specific skills in the field of building and systems energy efficiency. For example, an architect, an engineer or a surveyor.

How is an APE issued?

An onsite inspection of the property is mandatory.

The certificatore energetico uses software to assess the characteristics of the property. This includes input about structural aspects of the building, walls and frames – both doors and windows. The inspection also takes into consideration the efficiency of heating, ventilation, air conditioning, hot water and energy production systems such as photovoltaic panels.

Based on all the input, the software calculates the property’s level of energy efficiency and the certificatore energetico issues the APE. In addition, the certificatore energetico submits a copy of the APE to the competent Regional authority.

You should keep your APE with your boiler manual and, when you sell or let your property, provide it to the new owners or tenants.

If you are buying a property in Italy, you should request its APE well before you sign a deed of sale.

How much does an APE cost?

There is no set fee. Costs depend on the location and the characteristics of the property. As a guideline, the price of an APE for an apartment varies on average between € 150 and € 250. For bigger properties such as villas, townhouses, shops and offices, the cost is higher.

Why do you need an Attestato di Prestazione Energetica?

As previously mentioned an APE is a statutory requirement.

Its main purpose is to evaluate the financial implications of energy consumption when buying or renting a property. An APE also provides recommendations to reduce energy consumption and costs.

Although, it may seem like just another bureaucratic process, the APE is a document that can help with marketability. Properties with lower energy consumption are more sought after when it comes to selling or letting them.

In addition, the Italian government offers green incentives for energy efficient new build constructions and renovations to existing properties that improve energy efficiency. For renovation-related incentives, you can use before and after APEs to prove that you have improved energy efficiency.

Avoid Attestato di Prestazione Energetica scams!

There have been a number of scams associated with APE issuance. Our advice is to make sure you check that your certificatore energetico has been accredited by your Region. Compare estimates in your area. Make sure that the estimate includes VAT, postal costs, expenses and any other additional costs. Be wary of excessively low prices or anyone who tells you that you don’t need an onsite inspection. And watch out for intermediaries who offer their own expert at an excessive price.

Finally …

An APE is also useful when obtaining a Certificate of Habitability for a property.

If you have any questions about an Attesto di Prestazione Energetica, or if you need support or help with getting an APE, we would always advise that you seek independent legal advice.

 

You may also be interested in What is an italian Energy Performance Certificate?

You may also like our info videos about Italian property law.

Cura Italia Decree. March 2020

Wide-ranging central bank and government policies and stimulus packages are supporting the economy during the COVID pandemic. The Italian government has moved quickly to activate a fiscal package to support businesses and individuals through the crisis.

The measures introduced in the “Cura Italia Decree” take a three pronged approach. Firstly, they aim to reinforce the health sector through these difficult times. Secondly, they help alleviate the impact of the COVID pandemic on business in general and thirdly they support daily life for individuals and families.

Below we summarise some of the measures included in the Cura Italia Decree.

Cura Italia Decree. Suspension of payments

VAT registered companies and professionals with their fiscal domicile, registered office or place of business in Italy, whose turnover did not exceed €2 million in the fiscal year preceding the entry into force of the Cura Italia Decree, are eligible to defer the following payments:

– VAT (balance due on the VAT return and payment due on February 2020)

– Withholding Tax on employee / similar  income

– Social Security Contributions

These payments are now due by 31/05/2020 either in full or they can be made in 5 equal instalments starting from May 2020. No interest or penalties are applicable.

Cura Italia Decree. Suspension of obligations due between 08/03/2020 – 31/05/2020

 

  Previous Due Date New Due Date
VAT Return 30/04/2020 30/06/2020
TR Form 30/04/2020 30/06/2020
Esterometro (Jan./Feb./ Mar.) 30/04/2020 30/06/2020
Intra Form 25 monthly taxpayer or quarterly 30/06/2020
SSP Form 30/04/2020 30/06/2020
EAS Form 31/03/2020 30/06/2020

Dates for Income tax returns have not been extended and must therefore be submitted on 30/11/2020 and 30/06/2020 respectively.

There have also been no changes to income tax payment deadlines. That is to say, based on the self-assessment system, payments are due in June (30/06/2020) and November (30/11/2020) respectively.

Regarding companies, the Cura Italia Decree provides an extension for approval of financial statements to 180 days from the end of the financial year. In addition it allows for a deferment of tax payments. Given travel restrictions, annual general meetings to approve financial statements can move online via for example, video-conferencing.

  Date Income tax payments
Approval within 120 days from end of 2019 30/04/2020 (regular) 30/06/2020 – 30/11/2020
Approval within 180 days from end of 2019 28/06/2020 31/07/2020 – 30/11/2020
Approval within 180 days from end of 2019 (maximum add 30 days) 28/07/2020 31/08/2020 – 30/11/2020

IMU (property tax), payment deadlines also remain as is: 16th June, 2020 and 16th December, 2020.

Cura Italia Decree: Suspension of payments due between 2/3/2020 – 30/04/2020 for hospitality and leisure sector

The government has extended payments by one month for companies in the tourism-hotel sector with reference to VAT, withholding tax, social security contributions. However, these tax liabilities must be paid in full by 31/05/2020 or in 5 instalments from that date.

Cura Italia Decree: Payments to Tax Collection Agency (Agenzia Riscossione)

The Cura Italia Decree provides for the suspension of tax payments due in the period between 08/03/2020 and 31/05/2020 arising from bills issued by Tax Collection Agencies.

In addition, a suspension also applies to notices issued by the Italian Customs Agency as well as injunctions and further collection notices issued by municipalities or local authorities.

Furthermore, a suspension also applies to payments of facilitated settlement of tax bills (Rottamazione-ter). Instalments due in February will now therefore be payable on 31/05/2020.

Other liabilities

Payments on debts to other collection agencies (Agenzia Riscossione) including for instance INPS and Italian Customs that are payable between 8/03/2020 – 31/05/2020 have been deferred until 30/06/2020. However, suspension of payments does not extend to payment reminder notices from the Italian tax authority (Agenzia delle Entrate).

Other measures

A tax credit of 60% on rent for commercial premises (cadastral category C/1) for March 2020.

Companies can activate lay-off procedures. The Cura Italia Decree includes provisions in order to support employers who are facing a reduction or suspension of activities due to the Covid-19 emergency. This means employers can use a simplified procedure to apply for ordinary social security funds (cassa integrazione) for employees who were already employed by 23 February 2020. This support lasts for a maximum of nine weeks and, in any case, no later than August 2020.

In consideration of the lockdown of several economic sectors in Italy, additional indemnity payments for registered VAT self-employed entrepreneurs or professionals who do not benefit from specific social security coverage have been agreed. Payments of Euro 600.00 per month in lieu of income. Although procedures have yet to be announced, the payment of this allowance will be borne by INPS.

Requests for a suspension of first home mortgage payments is to be made to the relevant credit institution.

Finally …

While this summary does not provide an exhaustive explanation of the contents of the Cura Italia Decree, it aims to provide a brief overview of the measures that the Government has adopted. Although details regarding the implementation of measures are pending, each of the measures has specific requirements that will be implemented by provisions issued on a ministerial and regional level. Get in touch for additional information.

You may also like to read about how the pandemic has impacted the Italian property market.

International Succession

Foreign nationals with a second home in Italy are subject to international succession procedures

International succession pertains to the estate of a person who dies in a country other than that of their nationality or residence.

It is likewise applicable to someone who leaves movable or immovable assets in a country other than that of their citizenship or residence. If, for example, you are a foreign national who owns a second home in Italy, your estate will be subject to international succession procedures.

In August 2015 new EU regulations governing inheritance came into force. These regulations, known as Brussels IV, aim to simplify and accelerate international inheritance matters and make cross-border succession procedures more efficient. Prior to the introduction of Brussels IV, international succession laws differed from country to country.

Since its introduction, there have now been a number of cases regarding the interpretation of the new EU regulations. One such international succession case came to court in Salerno in 2018.

The case involves two brothers who co-owned three properties in Italy. In 2016 one of the brothers, an Italian citizen, died in New York where he was a resident. He died intestate meaning he didn’t leave a Will.

One of the decedent’s six brothers is a co-owner of the three Italian properties. He took legal action to wind up the Italian property co-ownership. He subsequently filed an inheritance claim for his brother’s share in the property.

Article 24 paragraph 1 of EU Regulation 1215/2012 (so-called “Brussels I bis”) governs dissolutions of co-ownerships. It entrusts such cases to the court of the country in which the property is located. In this case therefore, Italy.

To make life simpler for those you leave behind, it is crucial to have a Will.

For estate divisions, the court in Salerno applied the Brussels IV regulation.

Article 4 of the regulation establishes that the jurisdiction which rules on the succession as a whole, is that of the country where the deceased was habitually resident at the time of death. However, Article 10 provides for subsidiary jurisdiction of courts in which the estate is located – if the deceased was a national of that country at the time of death.

Returning to the case in question. The court of Salerno considered that the deceased was habitually resident in the State of New York. It therefore ruled that the case should be governed by the law of New York State.

Adding to the complexity of this case, rules of private international law are also relevant. The rules governing New York private international law provide that the law of the place where the property is located applies to successions concerning immovable assets.

The judge has adjourned the case until parties produce U.S. regulatory sources. This is something of a landmark case. It sets a precedent inasmuch that judges have the power and duty to ascertain foreign regulatory sources of their own volition.

Although Regulation 650/12 aspires to harmonise international succession, in terms of effectiveness it is confusing and open to interpretation.

For international succession and division of estates, Italian inheritance law specifically provides for rights to so-called, “forced heirs”. Their inheritance quota is guaranteed.

However, in countries with common law systems, such as the UK and the USA, testators can rule on how estates should be divided.

Brussels IV allows testators to make a choice of law in their Will

International Succession Planning

Article 22 of Brussels IV allows individuals resident overseas to elect which country law should govern their inheritance.

Where individuals have multiple nationalities, they may elect to have any one of their nationalities apply to their Italian assets.

In effect, this means that you can avoid any jurisdictional confusion after your death. However, you need to take action by making, “Choice of Law Codicil” in your Will.

Finally …

If you are in the process of drafting, or reviewing, your Will, you should consider aspects such as foreign matrimonial regimes, usufruct, tax consequences, joint ownership structures and other foreign proprietary rights before deciding which law to apply to the devolution of your estate.

Should you need further information concerning the topic, our legal professionals will be happy to discuss your situation. Please contact De Tullio Law Firm at the following email address: info@detulliolawfirm.com

 

You may also be interested in Applying A Power of Attorney in Italy

Italian Property Law: Deed of Sale

Italian Property Law. What is a deed of sale?

An Italian deed of sale is the final stage in buying real estate in Italy. It completes your property purchase. If you are not familiar with the Italian property purchasing process, you may like to read our free to download guide.

Buying and selling property in Italy requires the assistance of a Notary Public (notaio).

According to Italian law, a notary must remain impartial towards all parties involved in a property transaction.

Notaries work for the Italian State. Their services are not at all the same as engaging your own lawyer to guide you through the process.

Who is liable for detailed property checks and searches prior to completing a deed of sale?

You may think it is the responsibility of your notary to check these matters, however that is absolutely not the case.

Caveat emptor – buyer beware!

You, as the buyer, are responsible for ensuring that you know exactly what you are buying.

The importance of a certificate of habitability

There are some peculiarities involved in Italian property transactions. One of these oddities relates to requirements and details in a certificate of habitability (certificato di abitabilità).

A certificate of habitability is a document attesting a property is fit for purpose. That is to say, the property meets all health, safety and planning regulations and requirements. It is also a useful document for getting utility connections (power, water, etc.). You will also need a certificate of habitability if you need a mortgage, let your property or when you sell up.

It is crucial to check that a certificate of habitability pertains to the entire property, not just part of it

Take for example the case of Mr and Mrs Smith, who purchased a second home in the hills of the Abruzzo countryside. One of the features that attracted the Smiths to the property was the potential to transform the spacious attic into additional accommodation.

According to the deed of sale, the real estate had a certificate of habitability. The Smiths assumed that their notary had checked the details of the certificate. When the Smiths started to plan their project with a local architect, they discovered that the attic was not part of the certificate of habitability. Where did they stand from a legal point of view?

Limitations and obligations of a notary regarding an Italian deed of sale

You may think the Smiths’ is an unusual situation, however over the years, there have been numerous similar cases. Many of these have landed in the Italian courts.

In one case, the buyers of a property sued a notary for professional failure to verify whether a certificate of habitability pertained the whole property.

The court rejected any professional liability claim against the notary. The buyers appealed, but to no avail. The judgment stated that:

“a notary’s liability is limited to obtaining a vendor’s declaration that the property is fit for purpose”.

A notary is not responsible for checking property details

The buyers further appealed in the Supreme Court. They argued that a notary, in fulfilling his role as guarantor to the certainty and seriousness of property purchase, has a legal obligation to take all necessary steps to ensure that a property purchase is safe and secure.

The Supreme Court rejected the buyers’ appeal. The ruling established precise boundaries regarding a notary’s professional responsibilities. The ruling stated that a notary must conduct land registry and mortgage searches to ensure there are no legal impediments and/or encumbrances.

Where issues come to light, the notary has a duty to inform the parties to the transaction. A notary’s obligations can not however extend to ascertaining, in practice, the existence of qualities that do not affect the marketability of the property.

In other words, a notary must merely verify the existence of a certificate of habitability. The technicalities and details of what a certificate covers are beyond the notary’s remit and liability.

What if there is no certificate of habitability?

Where a property completely lacks a certificate of habitability, the notary must inform the parties of this and outline legal consequences.

If a property doesn’t have a certificate of habitability, it is still marketable. A certificate of habitability endorses that there are no issues that compromise health and safety. However the absence of a certificate is neither an impediment to the sale or purchase of property nor does it affect the validity of a deed of sale.

The notary will however need to stipulate that the buyer agrees to purchase despite the lack of certificate in the deed of sale. The notary may also add a clause designating one of the parties to the transaction as being responsible for obtaining the relevant certificate.

Planning permission, other checks and searches

It is also worth underlining the aspect of planning permission checks. A notary must verify the presence of planning permission for a property. However, a notary is not responsible for ensuring that the property actually complies with the planning permission.

As with the certificate of habitability and other aspects, the onus is on the buyer to conduct searches relating to planning.

Due diligence is key before you sign an Italian deed of sale. Failure to check everything thoroughly can lead to expense and pain later on. It may also impact future saleability of your Italian property.

Finally …

Liability related to an Italian deed of sale, involving not only the selling and buying parties but also a notary public, represents a complex legal matter which can have far-reaching consequences.

For many, buying a property in Italy represents a huge investment. For this reason, it is of the utmost importance to engage an independent lawyer for guidance and to review the Italian deed of sale before you sign it. Such a review is typically inexpensive and serves to make sure your interests are protected.

If you are buying a property in Italy, you should always seek independent legal advice. Should you need further information concerning a deed of sale, please contact our legal professionals at De Tullio Law Firm.

You may also be interested in Estate agents are neither lawyers nor independent. We are both.

Title deed in Italy. Change of Names.

Registering names on a title deed in Italy

The final step of the Italian conveyancing process is signing of the deed of sale. In effect this is a property title deed and transfers ownership of real estate into someone’s name.

This legal procedure demands the presence of a notary public, the real estate vendor(s) and buyer(s) and two witnesses.

The notary reads aloud the entire deed, which is written in Italian. All parties, including the witnesses and the notary public, then approve and sign the title deed.

If one of the parties to the transaction is not fluent in the Italian language, Italian law requires the presence of a qualified professional to translate and interpret the title deed. This could be a translator or a bilingual property lawyer. This legal requirement aims to ensure that all parties fully understand the content and ramifications of the deed. The professional acting as translator must also sign the title deed.

Once the notary has signed-off on the deed, the buyer acquires ownership of the real estate.

Subsequently, the notary is responsible for certain formalities. Because notaries work for the Italian State, registering the deed with the tax authorities is the first step. Next the notary lodges the deed in the Public Registers. This allows any third parties who may have an interest to know about the change of ownership. Lastly, the notary informs the land registry so they can update their records accordingly.

How do you change the name on an Italian property / title deed?

There are many reasons why you may need to change the name on a title deed in Italy. Divorce and death are the most common reasons.

In order to change the name on a title deed, you will require a new notarial deed.

For example, if you acquired a property with a spouse and following a divorce you need to remove one of the names from a real property title deed, you will need a new notarial deed.

Where the divorce decree is from an Italian Court, the transfer of ownership will not involve payment of any real estate transfer tax.

If on the other hand, the divorce decree is issued by a non-Italian Court, you will have to pay real estate transfer tax.

The terms of the new title deed determine applicable tax rates. It will depend whether the real property changed hands without any payment or if there was a financial transaction involved. In the latter case, you will need a new deed of sale.

How do you find out whose name is on a title deed in Italy?

In order to find out whose name appears on a title deed, you will need to conduct mortgage and cadastral searches.

Finally …

For more information and clarification or, if you need to change a name on a title deed or ascertain whose name is on a real property title deed, feel free to get in touch with us. We are here to help.

You may also like to read: Translating legal documents in Property Transactions