Tag Archive for: Italian Property Lawyer

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.

You may also like to watch our info videos.

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.

Get Your FREE Guide to Planning Your Inheritance in Italy

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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.

For international succession, 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

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

Buying a house in Italy: Italian Deed of Sale

Buying a house in Italy. What is a deed of sale?

An Italian deed of sale is the final stage of buying a house 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.

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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.

When buying a house in Italy 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 to 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 parties to the transaction. A notary’s obligations cannot 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, the title deed in Italy 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.

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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

Buying a House in Italy Can Be A Nightmare

When buying a house in Italy, before you sign any paperwork, seek professional advice

Buying a house in Italy is a serious investment and often the fulfilment of a dream. Italy’s unique real estate laws and local customs all lead to the recommendation of having the right team of advisors in place to make your experience successful.

A couple from Bristol found a house in the Abruzzo that they wanted to buy. The vendor’s real estate agent got them to sign a Proposta di Acquisto (reservation offer).

The estate agent passed the reservation offer to the vendor. The offer basically stipulated the price the couple was willing to pay for the property. It included the couple’s cheque for a €5000 deposit, made payable to the vendor. The vendor accepted the couple’s offer, took the cheque, and the deal became irrevocable. The estate agency also asked the couple for their brokerage fee of 3% of the purchase price, which they immediately paid.

Get Your FREE Guide to Buying Property in Italy

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The couple then discovered that the charming outbuilding with self-contained accommodation had no planning permission. Getting the building regularised would entail fees for a geometra (surveyor) and tax to the local municipality. The outbuilding would be subject to a demolition order if the permit was not granted. The couple even faced the risk of prosecution for illegal construction. The vendor had no intention of remedying the situation and there was no recourse for the couple. The couple was stuck in a nightmare scenario and yet, the whole thing was easily avoidable.

Teamwork makes the dream work

As a foreigner buying a property in Italy, before you sign any paperwork which may be legally binding, make sure you have the right team of advisors working for you.

Choose your own geometra to assess the integrity of a building’s structure. Check whether planning permission exists and, if necessary, what the costs would be for putting things right. You may also want to ask a geometra about the geology of the location. How prevalent are natural hazards such as landslides or earthquakes?

Engage your own lawyer. Your independent legal advisor will examine titles, zoning matters and review all paperwork associated with buying a property. A lawyer can save you money by helping you negotiate the deal and will ensure your rights are protected.

Italian law requires that all property and land transactions complete through a notary. Notaries work for the Italian State to ensure that transactions happen in accordance with Italian law. They ensure that purchasers pay all the relevant fees and taxes and register the deed of sale. Choose your own notary.

Independence is key when buying property in Italy

We cannot emphasise enough the importance of seeking independent advice. Choose your own professionals. While the estate agent or vendor may recommend professionals with whom they cooperate, you should bear in mind that estate agents and vendors have a vested interest in selling the property to you.

Finally …

At De Tullio Law Firm, in addition to full conveyancing services, we offer a property background check. This is a  pre-purchase service, which identifies and prevents problems such as the ones encountered by the couple from Bristol.

Likewise,  for those looking to sell their Italian property, we can help you prepare a pre-sales package that includes all the paperwork potential buyers will be looking to gather prior to making a purchase decision.

For more comprehensive information about the Italian property purchasing process, you might like to read our guide. If you would like to discuss your situation or, if we can be of assistance, please get in touch.

 

You may also be interested in Insider Tips for Buying A Property in Italy

Holding Accounts in Italy. Property Completion funds

Keep your property completion money safe

On 29th August 2017, Italian legislation saw the introduction of holding accounts. The legislation governing payment for the purchase of Italian residential and commercial real estate is part of the Italian Law of Competition.

The law aims to provide better protection to both property buyers and sellers.

Holding accounts are applicable to funds for the completion of the purchase of Italian property. Deposits connected with a reservation offer and preliminary contracts are not subject to this legislation.

Get Your FREE Guide to Buying Property in Italy

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The buyer and/ vendor must request their chosen notary to use a holding account. In other words the notary doesn’t automatically use holding accounts.

In addition, the buyer can request the notary to keep funds in a bonded account. Again, the onus is on the buyer to specifically request that the notary use bonded holding accounts. As this may generate problems with the seller, we would recommend that the preliminary contract include a clause that all parties authorise the notary to hold completion funds in bonded holding accounts.

How do holding accounts work?

The buyer acquires legal ownership of the property at the signing of the deed of sale. However, by using a holding account, the notary will delay payment until after registration of the deed.

Following signature by all parties to the transaction, the notary has 30 days to register the deed of sale with the relevant land registry authorities.

Once registration of the deed takes place, the buyer can be certain that the purchase has been completed smoothly. Tranfer of funds to the vendor can then take place.

Keeping funds in holding accounts therefore provides protection to the buyer between signing the deed of sale and its registration.

Between signing and registering the deed, adverse entries pertaining to the property can come to light. Issues might include outstanding debts, mortgages, encumbrances, court applications for seizures and foreclosures.

The Law of Competition states that when purchasing property, all outstanding payments by the buyer to the seller should be kept in dedicated holding accounts belonging to a notary. This sum also includes any amounts the vendor may require to settle liabilities. For instance, the vendor may still be paying off a mortgage on the property. In this case, the buyer would pay the entire balance of payment for the property into the notary’s holding account. However, a part of this will serve to redeem and cancel the vendor’s mortgage lender once the purchase is complete.

Do all notaries have holding accounts?

The Law of Competition stipulates that a notary must have a holding account in which the notary can receive funds from clients for the delayed payment of real estate property.

A notary has no entitlement to any interest accruing to these holding accounts. Nor can a notary use funds for any other purpose than the payment of a particular property.

Furthermore, if a notary has debts, creditors can not foreclose on money deposited in holding accounts. Should the notary die, any funds in holding accounts do not constitute part of the notary’s estate. And in the event of death, funds do not form part of the notary’s matrimonial property regime.

Finally …

If you are looking for further information about the Italian property purchasing process, you might find our comprehensive guide helpful, or if you need independent legal advice,  please get in touch for a free consultation.

 

You may also find Buying Property in Italy useful.

Avvocato – Frequently Asked Questions

What does avvocato mean?

The Italian word, avvocato, has three main equivalent terms in English: lawyer, solicitor, attorney.

How long does it take to become an avvocato?

What is an Avvocato?

Left: Giandomenico De Tullio. Managing Partner. Right Giovanni De Tullio. Founding Partner. De Tullio Law Firm.

The path to becoming an avvocato in Italy involves several years of study and internships.

Firstly, future lawyers need to complete a Bachelor’s Degree in law, (Laurea in Scienze Giuridiche), which takes three years.

Secondly, to proceed along the path towards practising law, students require a two-year post-graduate degree (Laurea Specialistica in Giurisprudenza) or, a further five-year Master’s Degree (Laurea a ciclo unico Magistrale in Giurisprudenza).

Thirdly, after attaining the aforementioned qualifications, an avvocato needs to complete a two-year internship at an established law firm.

Finally, in order to practice law, an avvocato must pass the Italian Bar Exam. After registering with the Italian Law Society (Consiglio dell’Ordine degli Avvocati), Italian lawyers can practice Italian law wherever they choose in Italy.

What is an Italian attorney’s scope of legal practice?

The legal competencies of a qualified avvocato are wide-ranging. They comprise all areas of the law: civil, criminal, labour, bankruptcy, financial, administrative, inheritance and succession cases. In addition an avvocato handles court trials and appeals.

Is an Italian avvocato subject to a code of conduct?

A strict ethical code of conduct governs an Italian avvocato and the performance of their duties. Firstly, Italian attorneys must base their conduct on respect for integrity, dignity and decorum. Failure to comply with this ethical code of conduct leads to disciplinary proceedings.

The legal profession demands honesty and integrity. It is not permissible for an Italian attorney to start a legal action or take part in a proceeding, which may be construed as acting in bad faith.

Secondly, the Italian legal code of conduct safeguards the client. An Italian avvocato has a duty of care and loyalty towards a client. An Italian attorney behaving contrary to clients’ interests, or taking on a case that they are not competent to conduct, would be a breach of this code of conduct.

Does client confidentiality exist in the Italian legal profession?

Yes. Another fundamental duty for an Italian attorney is confidentiality. On the one hand this regards the provision of services to a client. On the other hand it pertains to any information given to a lawyer by the client, or which becomes known to the lawyer. Confidentiality remains valid for information about former clients, or where the attorney, despite knowing the details of a case, does not agree to take on a case.

The relationship between an Italian attorney and a client is fundamentally based on trust; an attorney must defend a client’s interests as well as possible within the framework of legal representation and in compliance with the law and the ethical principles of the legal code of conduct.

Finally …

At De Tullio Law Firm, we have extensive knowledge and experience of Italian and international law. For over 55 years, we have been providing expert legal services throughout Italy. Whatever your legal need in Italy, get in touch with us for a free consultation.

You may also be interested in De Tullio Law Firm: celebrating 55 years in practice.

 

Partition of an Italian estate. Inheritance Law

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

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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

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.

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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

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.

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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.