15/11/2013 - La possibilità di richiedere dilazioni del debito fiscale fino a 120 rate è differita al momento in cui sarà emanato il decreto attuativo, previsto entro 30 giorni dalla conversione del Decreto-..
15/11/2013 - La possibilità di richiedere dilazioni del debito fiscale fino a 120 rate è differita al momento in cui sarà emanato il decreto attuativo, previsto entro 30 giorni dalla conversione del Decreto-..
09/07/2013 - E' stato ratificato l'Accordo tra Italia e San Marino, che conduce alla caduta definitiva del segreto bancario: l'Accordo, contenente la Convenzione contro le doppie imposizioni, prevede..
09/07/2013 - Il 18 giugno 2013 è definitivamente entrata in vigore la legge n. 220/2012 recante la "Riforma del Condominio": è la prima vera riforma profonda del codice civile in materia di Condominio, Ammini..
24/06/2013 - Una recente sentenza del T.A.R. del Lazio (n. 8297 del 4 ottobre 2012) ha stabilito che anche "il semplice cambio di destinazione d'uso, privo di opere edilizie, se operante tra categori..
19/06/2013 - Un “cambiamento culturale” per superare i tabù e le barriere psicologiche, per pensare al lascito solidale come ad un atto di amore alla portata di tutti, che può cambiare la vita ..
Buying a house in Italy
The purchase of a home is always an important step in our lives. Just as the sale of a property also carries significant overtones: from investment decisions, to the reordering of assets, to the need for generational change. Whether it be the purchase or the sale of a property, it is not something to be taken lightly.
Indeed, these are extremely complex operations that are full of pitfalls and that cannot be undertaken without the advice of an expert. Are you aware of the rights and obligations of both the vendor and the purchaser? And, above all, do you have the necessary legal knowledge to avoid unpleasant surprises whether you are buying or selling a property?
Precisely to ensure the highest degree of safety and reliability in the purchase of such valuable assets, almost all legal systems in modern countries have given the task of ensuring a satisfactory outcome of the investment to a special legal figure: the notary. A figure of unquestionable professional integrity, absolute impartiality and considerable technical expertise.
The notary, being a third party with respect to both buyer and vendor, guarantees the interests of both, taking upon himself the full, unconditional and, above all, extremely grave responsibility for ensuring a positive conclusion to the conveyance from every point of view.
For that reason he is able to provide all the information that is useful or necessary for the successful conclusion of the transaction.
The notary has the necessary experience and professional capabilities to explain all the rights and obligations of the parties to the conveyance, guaranteeing the protection and complete satisfaction of the interests and expectations of both sides.
It is important, then, to turn to a notary to be informed of the pitfalls, for both buyer and vendor, that may be hidden beneath an (apparently) banal conveyance.
These pitfalls, however improbable it may seem, are present right from the first moment the decision is made to buy or sell.
For example, are you aware of the considerable legal consequences (mostly irrevocable) deriving from a simple signature on a simple purchase or sale proposal?
Do you have any idea of the constraints and obligations that may arise from the signing of a preliminary agreement, even if it is only privately produced?
It is therefore important to take the right first steps in the difficult world of real estate conveyancing. Let your chosen notary guide you: he will be able not only to help you reach your goal satisfactorily and safely, but will also advise you as to the best solutions for taxation purposes.
The role of the civil law notary
The civil law notary is at one and the same time a public official representing the State, and a professional expert in the juridical field.
He/she is appointed by the Ministry of Justice and is assigned by the latter to a single Municipality, although, if required, he/she is empowered to carry out his/her functions throughout the territory of the Court of Appeal where the seat he/she is assigned to is located, provided that he works in his seat at least three days a week.
Accordingly, although he/she is “physically” anchored to the territory for which he/she is competent, every civil law notary may, while remaining in the place assigned him, carry out his/her office relative to properties located anywhere in the national territory: for example, the parties to a purchase/sale of a property located in Palermo may still go to a civil law notaryof Turin in order for the latter to arrange for stipulation of the contract.
Choice of civil law notary is absolutely free and left to the discretion of the parties concerned: however, in the context of the purchase and/sale of property, choice of a civil law notaries is in general reserved to the purchasing party as that liable to payment of the remuneration due to the civil law notary, save agreement to some other effect.
Rights and Obligations
A property conveyance gives rise to a series of rights and obligations for both parties.
For a number of the rights of one of the contracting parties, there are corresponding and equal obligations of the other party, so that the vendor and the purchaser find themselves involved in an interactive web of expectations to be met and duties to be performed.
While some of these rights/obligations, such as the payment/receipt of the purchase price and the delivery/receipt of the property, are obvious, others are less so for most people, even though they are of equal relevance and importance.
In the first place, both parties must present personal identification (identity card, passport, driver's licence, etc.) and their fiscal code (better if this is done by presenting a health card which has replaced the old fiscal code card): the latter is necessary for the tax reporting the notary is obliged to perform; it is important to remember that foreigners, before the conveyance can take place, must apply to the Agenzia delle Entrate (Taxation Department) for the assignment of a fiscal code.
In the second place, vendor and purchaser must inform the notary of their marital status which is very important for the effects the property arrangements between spouses have on the validity and consequences of the transaction.
If they so desire, the parties need not be personally present at settlement, but may confer a notarised power of attorney for the sale or purchase of property, so that the representative thus nominated, who will be personally present before the notary armed with the authorization (which will be attached to the transaction documents), will do all that is necessary for the contract to be made good on behalf of the person or persons who conferred the power of attorney (this is very useful for foreigners who are abroad or who for one reason or another are unable to be present in the notary's office on the day of the transaction).
Moreover, as regards payments made after 4 July 2006, Article 35, Paragraph 22 of decree-law no. 223 of 2006 obliges both parties – vendor and purchaser – to make a declaration in place of an attested affidavit with details of the means of payment for the transaction.
So, as an example, the parties must communicate the number of the bank cheque or personal cheque used for the purchase price, whether it was transferable (forbidden for amounts over 12,500 Euros), the amount of the cheque, the number of the account on which it was drawn or the identity of the issuing bank. …; all of which is obviously intended to lead to the greatest possible transparency, for economic and fiscal reasons.
In addition, the parties must declare in the same way whether one or both of them have used the services of a real estate agency and, if so, the sum paid for that service and the details of the means of payment (the sale contract must also show the VAT code or fiscal code of the real estate agent).
Both parties have to fulfil obligations of a fiscal nature which, given that they vary according to the parties to the conveyance and other circumstances, are worth treating separately.
Rights – The vendor has the right to receive the full amount of the agreed price from the purchaser at the time the sale contract is settled. Frequently the vendor has already received an advance payment on that price, generally as a deposit: in that case he will have the right to receive the difference to make up the full agreed price.
The vendor has the option to allow the purchaser a deferral of payment, with or without interest.
It is up to the discretion of the vendor (based on the trust he has in the other party) to demand and obtain from the purchaser guarantees as to the deferred payment of the price.
These are the alternatives: a simple mention in the contract of the deferral of payment; issuing of a bill with or without mortgage backing; registration of a legal mortgage; conditional ownership until final payment has been made.
Given the complexity of the subject and especially the need to assess each single case on its merits, the best advice is to consult a notary who will be able to suggest the best solution for protecting your rights.
Lastly, a word about means of payment: given that the law forbids the use of cash for amounts over Euro 12,500, the alternatives are basically a non-transferable bank cheque (i.e. a cheque drawn by the bank which guarantees it is covered), non-transferable personal or postal cheques (lacking the above guarantee) or a direct bank transfer.
Of these means of payment, the one most used is certainly the bank cheque because, since it is guaranteed by the bank, it is safer for the vendor: the vendor may therefore insist that the sale price be paid in this manner since it is now the established legal practice.
It not infrequently happens, however, that the bank, which is financing the cost of purchase and which has been approached by the purchaser about a mortgage, does not immediately make the funds available to the purchaser, but makes their availability subject to the fulfilment of all fiscal and registration requirements the notary must carry out and in some cases even the expiry of a legal term: to this end, the purchaser gives the bank an irrevocable mandate to transfer the agreed amount directly to the vendor, so that the lending/mandated bank, once the notary acting in the case advises that all formalities relating to and consequent upon the conveyance have been correctly completed, will pay the agreed sum directly to the vendor.
This practice on the one hand assures the bank that the customer it is financing gains full title to the property and on the other hand provides a guarantee to the vendor since the purchaser/borrower, having once given such a mandate, cannot revoke it and prevent the bank from paying.
Obligations and Duties – In the first place, the vendor is obliged to consign to the purchaser the property sold in the state in which it is with vacant possession, free of persons and things, at the time the contract of sale is notarised, i.e. at the same time as the balance of the price is paid.
The vendor has the option, however, of allowing the future purchaser to occupy the property even before the actual change of ownership, it being understood that because he is still the owner of the asset he remains responsible for it under the civil, criminal, administrative and fiscal laws.
Vice versa, the vendor may be authorized by the new purchaser to remain in the property after the sale or to delay handing it over until a later moment.
The vendor, using the appropriate form and within 48 hours of settlement, is obliged to advise the authorities (the Police or, if there is no local police station, the mayor) of the change of ownership, indicating the details of the purchaser.
Finally, the vendor is obliged: to advise the notary of the property's ownership history demonstrating its legitimate current ownership and the details of development permission (licence, concession, building permit, declaration of commencement of works …) of any building sold; to furnish all the administrative documentation where there has been a building amnesty; to present the Certificate of Land Use issued by the relevant Municipality in the case of the sale of unbuilt land; to present the certificate of fitness for habitation as well as the documentation relating to equipment systems.
It must be emphasized that the notary not only assists the parties in gathering the documentation and information necessary, but also and more particularly, within his duties, carries out the necessary checks on the truthfulness of what has been declared by the vendor, thus guaranteeing the conveyance can be completed as diligently and safely as possible.
The vendor also guarantees the purchaser against eviction and defects; and undertakes to pay all common property expenses, including those decided upon by the body corporate but not yet paid, up till the date of the sale unless otherwise agreed; to pay I.C.I. (council rates) through the end of the month of sale if the transfer takes place after the 15th day of the month and otherwise through the end of the month preceding settlement of the contract if that takes place in the first 15 days of the month.
As far as ICI is concerned, from 14 November 2002 the parties are exonerated from the obligation to make an ICI declaration in all cases where the notarised contract transferring the property is registered on-line.
The vendor also has a series of obligations of a fiscal nature, as is better explained in the relevant section.
Rights - First of all, the purchaser has the right to have the vendor consign the property at the time of the notarised conveyance, upon payment of the purchase price, in its known state, with any agreed accessories, free of persons and things.
It is legitimate for the purchaser to request consignment of the asset before the definitive transfer: however it is not his right to insist upon it, it being left to the discretion of the owner whether or not to allow this (not only because the balance of the purchase price has not been paid, but in view of the ongoing civil, criminal, administrative and fiscal responsibility of the vendor as legal owner).
Vice versa it is also possible for the purchaser, in order to assist the vendor, to delay taking possession of the property until a date after the definitive contract is settled, though it is advisable in such cases to set a limit in the contract itself and to establish penalties for any delay.
The purchaser has the right: to receive from the vendor all the documentation relating to the property (for example, as to any building amnesty as well as receipts for payment of the common property expenses or any mortgage over the property); to be guaranteed by the vendor against eviction and defects; to obtain from the vendor all useful information relating to the property.
Obligations - The purchaser's main obligation is obviously to pay the agreed price to the vendor at the time the sale contract is completed. Where an advance payment has been made as a deposit, the difference must be paid to make up the full agreed price.
It is legitimate for the purchaser to request a deferment of payment, but it is not his right to insist upon it, it being left to the discretion of the vendor whether or not to grant this: the purchaser's obligation to pay the price in full derives from the purchase and the consignment of the asset (for possible forms of guarantee relating to the granting of deferred payment, see “Vendor's Rights”).
On this point, attention must be drawn to the provisions of decree-law no. 223 of 2006, which obliges the parties to a conveyance to advise in detail the method of payment of the sale price, and to declare whether one of the parties or both of them have made use of an agent (see the chapter on “Rights and Obligations”).
Furthermore, given that the law forbids the use of cash for amounts over Euro 12,500, the obligation to pay may be fulfilled by a non-transferable bank cheque, a non-transferable personal or postal cheque or a direct bank transfer, even if the latter is very often preceded by an irrevocable mandate given by the purchaser to the bank financing the purchase to pay that amount directly to the vendor.
As for consignment of the asset, the purchaser has the option not to make full payment in the case where the property is not released by the vendor: the agreement between the parties may include the choice of one of multiple possible solutions (full payment without consignment, the vendor being given a deadline to provide vacant possession; stipulation of a penalty; payment of the balance only on vacant possession: in this last case, however, it will be necessary after the conveyance to prepare a further notarised document called a discharge, whereby the vendor, having consigned the property and received the balance of the money from the purchaser, gives the latter a release (or discharge) regarding payment of the sale price.
In a property conveyance, right from what we have called the preparatory phase before the definitive contract, the notary plays a rather delicate and important role: determining whether in fact the vendor is free to sell the asset and whether the purchaser in his turn may legitimately acquire it.
For example - to cite just a few of the more important aspects - the notary's tasks include certifying the personal identity of the parties (in other words that the vendor and hence the owner of that property is truly that vendor and owner); guaranteeing the vendor's full ownership and title and the disposability of the property, as well as that it is completely free of mortgages, foreclosures or any other form of restriction or limitation; checking that the vendor has been satisfied, having received the agreed amount from the purchaser and that, at the same time, the purchaser has received from the vendor the long-desired keys to the new home so as finally to be able to take possession of it; advising the purchaser (as well as the vendor, as will be explained ...) as to the best fiscal profile, suggesting the most suitable and advantageous solutions from an economic viewpoint in the particular situation.
These are only a few of the multiplicity of important tasks that the notary, in his dual role as independent professional and public official, is called upon to carry out when he is charged with the whole procedure of a property conveyance. This is a very long and laborious procedure in which the signing and settling of the definitive contract is only one phase, though certainly a central and emblematic phase: the notarised contract is the outer manifestation (the tip of the iceberg, one might say metaphorically!) of all the notary's work which is often not fully appreciated and which does not end with the preparation and signing of the contract, but continues, just as intensely, with the performance of other important tasks such as the registration of the transfer and especially the transcription of the contract.
The owner of an asset is not always able to sell it when and how he wishes and in the same way not all parties may freely purchase an asset: it may happen that there are restrictions or limitations which may subject the sale or purchase to the carrying out of a series of formalities.
Purchase/Sale by spouses
Following marriage, unless an explicit declaration to the contrary is made at the time of the ceremony, spouses find themselves in a shared property arrangement, this being the automatic legal regime in force in our system since 20/9/1975.
This means that any purchase made by a spouse during the marriage is subject to legal community (or, simply put, is common property) with the other. The law excludes (to take a few of the more important cases) only assets acquired by donation or inheritance by reason of death and obviously those acquired before the marriage.
Our legislation also allows assets to be excluded from this community of goods in the following cases:
- goods used for strictly personal purposes and their accessories (Article 179c of the Civil Code);
- goods used for the exercise of one's profession excluding those used to conduct a business held in common between spouses (Article 179d of the Civil Code);
- goods purchased with the sale price, or through the exchange, of the personal assets listed in Article 179 of the Civil Code so long as that is expressly declared in the purchase contract (Article 179f of the Civil Code). In this case, however, it is necessary that the spouse who is not the purchaser confirm in the contract that the asset so purchased is to be excluded from the common property arrangement.
Where the spouses have separate property since the time of their marriage (by choice at the time of the wedding ceremony) or stipulate a matrimonial agreement after marriage whereby they choose a separate property arrangement, there is no problem with purchases: each spouse will be the single exclusive owner of a subsequently-purchased asset.
As for sales, instead, in order to establish whether a given asset is the property only of the formal owner or also of his/her spouse, it is necessary to take into account the property arrangement existing between them and, in the case of legal community of assets, the date of the purchase as well as the origin of title.
Purchase of a property previously the subject of donation or inheritance
As may be observed above, the role of the notary is important in guaranteeing the statements the vendor usually makes at the time the sale takes place.
In particular, the vendor is obliged to make known how the asset he is about to sell came into his hands.
It may be that he purchased it for a consideration in the normal way, or that he has occupied it for a sufficient number of years to avert any danger of eviction.
It may be, however, that the property was donated to the vendor or that he came into possession of it as the beneficiary of a will.
In that case, the subject of the sale is less “sure” in the sense that subsequently the will or the donation could be legally contested with the consequence that, if it were invalidated, that would lead to the substantial invalidation of the purchase contract subsequently entered into by the purchaser who would be obliged to return the property purchased or at least pay an equivalent sum.
Since this is a very complex legal system requiring detailed knowledge, it would be impossible for buyers to know all the pitfalls in an apparently normal conveyance: the notary in that case can propose suitable solutions for rendering the purchase safe or, in the most serious cases, will advise against the purchase or at least warn the purchaser of the possible risks.
- If a married person wishes to sell a property, it is necessary to check whether or not the consent of the other spouse is needed (see "Special cases");
- If a minor or a person not of sound mind is the owner of an asset, a judge's authorization is needed for the sale as well as the intervention of that person's tutor or parent or legal representative; the same thing applies for a purchase by such persons;
- If an inherited asset is the common property of several heirs, before selling his share an heir must first “offer” it to the other co-owners and only if they decline to purchase it may it be sold to an outsider;
- For the sale of agricultural land, if the neighbours or those dwelling on the land are farmers, they must be advised of the intention to sell and only if they decline to purchase it may it be sold to an outsider on the same conditions that were communicated;
- In order to sell a rented non-residential property, it must first be offered for sale to the tenant; in some cases, even residential apartments may be subject to such a rule;
- If the purchaser or vendor of an asset is a company, whether private or public, or a legally constituted body in general, the contract must be signed by a person having the power to represent the company and undertake purchases or sales on its behalf, if necessary first obtaining authorization from the body responsible within the company;
- If a property is classed as low-cost or “public” housing in general, there may be numerous limitations on the right to sell/purchase it (price restrictions, temporary prohibition on selling, requisite characteristics of the purchaser, temporary duration of ownership, need for advance authorizations).
Freedom from encumbrances
- If the property is classified with “heritage” status or if it is subject to particular artistic-scenic restrictions there must be, in certain circumstances, the authorization of the relevant authority for the sale and it is subject to pre-emption by the Monuments and Fine Arts Office;
- It may be that the asset is subject to certain formal claims (usually one or more mortgages) which mean it is not entirely “free”; the notary is able to check on the existence of such circumstances and advise as to suitable solutions;
- At other times, the asset may be subject to an easement (commonly a right of pedestrian or vehicular passage accorded to the owner of an adjoining property) which may detract from full and complete enjoyment of the property: it is important to know before committing oneself to the sale or purchase whether such restrictions exist.
- When purchasing a property (apartment, garage, commercial premises etc.) it is always necessary to check that it is in order from the point of view of the building ordinances, i.e. the existence of a building permit for its construction or “concessions” for any work subsequently carried out (it is often the case that work done without authorization was subsequently the subject of an amnesty by way of a corrective building concession);
- For vacant land, it is always important to check its status (whether it is agricultural, whether building is permitted or whether there are scenic, archaeological or other types of restrictions) by way of a Town-Planning Certificate and to check that any subdivision was legally approved;
- For all kinds of property, it is necessary to check that land registry records are in order;
- For buildings, it is fundamental to ascertain that usage complies with the planning permit and the land registry specifications.
A sale or purchase proposal is a document the parties may sign before the conveyance proper. It consists, alternatively, of a manifestation of the owner's willingness to sell to a probable purchaser or a manifestation of a possible purchaser's willingness to buy from the owner: in both cases by acceptance of the proposal, believe it or not, the contract of sale is concluded and becomes binding for both parties.
Furthermore, the purchase or sale proposal is usually irrevocable: the signatory undertakes to maintain the offer for a certain period of time during which, even if he wanted to revoke it after a change of heart, he may not do so or, if he does so, the change is without legal effect.
Nevertheless, revocable proposals also exist that allow the signatory to withdraw, as do proposals that are revocable up to a certain date, after which it is no longer possible to withdraw.
The usual commercial practice is that agencies use pre-printed forms that on the one hand do not allow a party to modify the content of the proposal and on the other specify irrevocability so as to “block” the future vendor or purchaser.
Therefore, contrary to what is commonly believed, it is not so easy to withdraw once the proposal has been signed, since the proposal imposes obligations on the parties who have signed it.
The notary's advice is always impartial with respect to the individual interests of the parties and is certainly most useful before signing any document having to do with a real estate transaction.
He will be able to furnish all necessary information as to the nature and content of the document to be signed, so as to avoid unpleasant surprises.
It often happens that, after a prospective property has been inspected and chosen, substantial agreement is reached with the other party even if this is not yet formalized in written form.
It is advisable to contact a notary at this early stage before signing the preliminary contract (the so-called “compromesso”).
In the preliminary contract, both signatories undertake to stipulate the definitive sale contract by a certain date and on given conditions. The preliminary agreement (even if concluded privately), gives rise to commitments that are legally valid and binding for the parties (and may be enforced by a court).
It is clear, then, that it is important to carry out all the above series of searches and checks (vendor's full right of ownership, property free of all encumbrances and covenants, land registry and town planning/regulatory compliance) before signing the so-called “compromesso” (agreement to purchase) which, as has been pointed out, is not only legally binding for the contracting parties even if written privately, but not least because in practice it means the future purchaser must at the same time pay a sum of money (often a huge one) as an advance on the final agreed price. By immediately putting the matter in the hands of a notary, then, the purchaser gets a complete legal picture of the situation, obtains essential information and advice for the success of the conveyance and avoids the risk of signing a preliminary contact (with the consequent commitments and payment of monies) that he might not have signed at all if he had known the complete situation or in any case would not have agreed to on those terms and conditions.
The notary's intervention brings his legal training to bear on both parties in an impartial manner (thus guaranteeing the interests of the vendor as well), advising as to the best solutions for the specific case, carrying out all the necessary searches and checks (these are in any case needed for the subsequent definitive contract), preparing the preliminary contract and in that way sometimes conciliating and arbitrating, where possible, the divergent positions of the parties (e.g. as to advances on the sale price, as to the fixing of the date for settlement – since he can evaluate, after reviewing the whole case, how much time is needed for the technical steps to arrive at settlement, as to the consignment of the keys, just to cite a few of the more delicate points that statistically cause most trouble between the parties).
So although very frequently nowadays estate agents, in addition to their traditional role as mediators, also write the “compromesso” contract, it is generally advisable before signing to consult one's notary who will be handling the definitive contract, so that, after perusing the draft of the preliminary contract, he can provide all appropriate information and suggestions as set out above.
A 1997 law makes it possible to register preliminary contracts so long as they are a public document or an authenticated private agreement (so the "intervention" of the notary is indispensable); the law also states that they become invalid as though they had never existed if, within one year of the date agreed by the parties for settlement of the definitive contract and in any case within three years of the above registration, the definitive contract has not been registered: registration, with its “reservation” and "officialising" effect, protects the purchaser from possible non-completion by the vendor, particularly in the case where the latter decides to sell to a third party a property already promised to the purchaser.
Registration in such cases fulfils an essential function in the protection of the prospective purchaser, because it renders the preliminary contract “assertable erga omnes”, in the sense that no party not involved in the “compromesso”, after it has been registered, can maintain he was not aware of the preliminary agreement and therefore of the fact that the property was basically “reserved”: the registration of the preliminary contract protects the purchaser from any prejudicial event that may affect the property (e.g. mortgages or foreclosures) between the preliminary and definitive contracts; in the case of bankruptcy of the vendor, too, the registration of the preliminary agreement makes it much easier to recover all or part of any monies paid over (in bankruptcy proceedings, a promisee purchaser has a privileged position with respect to other creditors).
Finally, it must be emphasized that, as regards the registration of the preliminary contract, the duty imposed by law on any deposit (0.5%) or advance payments (3%) is recovered at the time of the definitive contract, in the sense that the duty paid is deducted from the amount of duty owing upon registration of the definitive contract.
The only fiscal charges on the contracting parties are the fixed registration tax and stamp duty, besides the costs of registering the transaction and the fees for the notary's services (consulting, preparation, witnessing and registration of the contract).
So, while the transcription of the preliminary contract and hence the intervention of a notary are optional for the parties (but certainly advisable in the light of the above guarantees they offer), it is still incumbent on the parties and now on the real estate agency to register the contract, even if it is stipulated privately.
The notary will be able to provide all necessary information as to the nature of the document to be signed and as to the content of the document, so as to avoid unpleasant surprises.
Content of the proposal and the Preliminary agreement (also for a purchaser to be named)
The following are examples of what needs to be included in a proposal for sale or purchase and in a preliminary contract:
- the precise description of the asset or assets;
- the exact identification of the owner or owners and of the purchaser or purchasers;
- the obligations of the vendor and of the purchaser;
- the price of the sale and method of payment;
- the conditions of the conveyance and relevant guarantees;
- documentation of the history of the asset or assets;
- indication of any encumbrances such as mortgages;
- the date of possession of the asset or assets;
- the deadline by which settlement must take place.
This does not mean that it is not possible, for any number of reasons, to reach a cut-down preliminary agreement containing only the essential elements, i.e.:
- the parties to the agreement;
- subject of the contract, which will be the future transfer of the property in exchange for payment of the sale price;
- deadline by which settlement must take place.
It is worth remembering that the preliminary contract and the definitive contract have an instrumental link, so that the definitive contract has a declarative and re-enforcing function with respect to the preliminary contract.
The function of the latter is so important that the promisee purchaser may apply to a court to have an uncompleted contract fulfilled should the vendor not comply with his obligations (see further detail in the chapter on the preliminary contract).
As further protection for the purchaser, the law provides that the preliminary contract, which must be stipulated as a public document or as a private agreement authenticated by a notary, must be able to be registered at the relevant Land Registry office: such registration has a “reservation” function, in the sense that the purchaser, following the preliminary agreement, is protected from any prejudice that may derive from any act that the vendor may undertake with respect to the asset described in the preliminary agreement after it has been signed.
This protection ceases, however, if within one year of the agreed date (hence the importance of the deadline in the preliminary contract) or within three years from registration, the definitive contract or equivalent (such as the sentence of a court as described above) has not been registered.
These rules apply also where the contract is for a property to be built, but in that case, the preliminary contract must include additional information with respect to the minimal content described above, such as the useable surface area of the portion of the building and the proportion of the whole building under construction which will belong to the promisee purchaser expressed in thousandths (on this point, see the paragraph on “Protection of Purchasers of Buildings Under Construction”).
In any case, the notary knows what information a “good” proposal or a “good” preliminary agreement must contain in the interests of both the selling and buying parties: on a case-by-case basis a technical-legal consultation will be prepared that best protects the interests of both parties.
In real estate practice, preliminary contracts on behalf of a person to be named are commonly used.
By this means, the purchaser can reserve the right to name at a subsequent date, in general at the time the definitive contract is stipulated, the person who is to acquire the rights and take on the obligations deriving from the contract.
This preliminary contract is particularly useful in allowing one party to participate at the stipulation of the preliminary contract and then, at will, to choose a different party as “purchaser”, who will be so considered from the time the contract is settled; this kind of contract may also be used for speculation.
In a contract with a person to be named there may however be pitfalls for the vendor, if one reflects that it is not always the same thing to have one purchaser rather than another, for any number of reasons (solvency of the named purchaser, personal and social considerations, previous relationships …).
However, since this is a procedure involving a high degree of technical competence, a notary will certainly be able to ensure the most suitable content for the requirements of the parties.
Protecting purchasers who buy a house before construction has been completed
A law that was long overdue
After long years of waiting, the decree-law that introduces greater protection for the purchasers of houses that are in the process of being built has finally been published in the Official Gazette (6 July 2005, n° 155). The measures introduced under this new law will have a major impact: indeed, according to estimates made by trade associations, since 1995 more than 200,000 Italian families have been involved in thousands of bankruptcies of construction firms.
Decree Law n° 122 of 20 June 2005, providing “Provisions for the protection of the financial rights of the purchasers of buildings in the process of being built, implementing Act n° 210 of 2 August 2004” which entered into force as of 21 July 2005, is undoubtedly not a simple provision; it is rich in content because it is not limited to making general provisions that envisage penalties for non-virtuous behaviour, but besides a range of rules of conduct that the seller must comply with, it lays down that the seller must provide surety bonds to protect the purchaser. This requirement is aimed not only at preventing the purchaser from losing the house that he wanted to purchase, but also at ensuring that money paid in advance can be recovered in case the seller were to experience critical circumstances (bankruptcy, distraint or other: article 1, paragraph 1c).
The individuals and categories of people affected by this Decree-Law are a great many because these new provisions address not only building firms and sales agents, but also technical people and professionals like notaries, lawyers, chartered accountants, book-keepers, land surveyors and in general the legal experts and consultants who operate in this sector.
Let us see in practice and very briefly what the main innovations of this Decree are; in particular how and when the new provisions apply and what main guarantees it provides.
To whom do the new provisions apply?
The Decree does not apply in general to all real estate transactions but only to those negotiations of buildings where the seller (called “builder”) sells a building that he or others have built (Article 1, paragraph 1, letter b). Hence the law applies not only to purchases from a builder (an individual or a firm), but also to the person or firm that sells a building built by a third party.
According to the Decree a “purchaser” is an individual who purchases a building or who, even though not a member of a cooperative, has taken on obligations with a building cooperative to have one of the building units assigned to him (article 1, paragraph 1, letter a). The protection offered by this law therefore does not apply to companies, associations, foundations and other entities, nor to public bodies; whereas it does seem to apply to individuals who make the purchase as part of their business or professional activity.
"Buildings to be built" under the new law
It is important to understand what the types of buildings are to which the duties and guarantees examined below apply. Under this law “buildings to be built” are those for which the building permit or other authorization to build was applied for after the entry into force of the law (21 July 2005), and which are not yet finished, and hence “the fit for use” (agibilità) statement has not been issued (article 1, paragraph 1, letter d). This means that on the one hand the law does not apply to the buildings that were being built at that date, and on the other that, for some specific situations, the Decree concerns buildings that have been finished.
The type of building is not important, that is to say whether it is an apartment building, office block, or industrial warehouse, because the law does not make a distinction and hence it applies to all types of buildings.
Negotiations affected and formal requirements of the preliminary agreement
The new law that is discussed below, and in particular the duty to take out a surety bond, applies to all types of real estate negotiations and hence it applies to purchases, exchanges, divisions, allotments by cooperative companies …, also and in particular to all forms of agreement that are made before the purchase and actual delivery of the property, such as preliminary agreements, promises to sell, leasing contracts, unilateral promises, advance payments, …. (article 1, paragraph 1, letter a) and article 2, paragraph 1).
The law provides for the contents of preliminary contracts in very great detail (article 6) so as to avoid the risk of being too general or even ambiguous, which has sometimes been the case in practice. The law reflects what is done in practice and it confirms the guarantees that are normally provided when the preliminary contract is drawn up by a notary, a solution that many people have thus far preferred in order to protect the asset they are purchasing.
Main gurantees granted: surety bonds for the amounts paid
The law (articles 2 and 3) provides that when entering a preliminary agreement, or any agreement or contract for which the purchaser takes on obligations and pays money in advance but does not immediately purchase the property in the building under construction, the seller must issue a bank or insurance surety bond that guarantees the entire amount paid and to be paid before the final conveyance deed (which coincides with the deed drawn up by a notary public).
The surety bond is the very heart of the new law because the legislator sets forth that where there is no surety bond the contract is “null and void”, which means that the purchaser can claim the advance sums paid plus claim for damages.
An additional guarantee: insurance policy for the building
Another important innovation is that the builder, or seller of buildings being constructed, is obliged to take out an insurance policy which will protect the purchaser for at least ten years from any damages deriving from the total or partial collapse of the building or from serious construction flaws (Article 4).
Other innovations in matters of mortgage splitting, right of pre-emption and bankruptcy
The law completes the range of measures introduced to protect the purchaser by extending to the purchaser the right to parcel out the loan and the mortgage on the building being built, and the prohibition on selling before the division of the loan into quotas, or before discharge of the mortgage or foreclosure where these are not taken over by the new purchaser (Articles 7 and 8).
The purchaser of a house to be used as his/her home has the right of pre-emption in case of an auction (Art. 9).
In addition some changes have been made in bankruptcy law with regard to the exemptions and limits to the azione revocatoria (voidability of voluntary conveyances to defraud creditors) so as to facilitate decisions on the buildings involved (Articles 10 and 11).
In practice what should the purchaser expect from a builder who applied for a construction permit (or any other notification or authorization) after 21 July 2005 and who has not yet completed the building?
The purchaser can demand:
- that all the information and protection measures provided for in the Decree be included in the preliminary agreement or promise to buy or in any other agreement or commitment;
- that, upon drawing up the preliminary agreement, or promise to buy, or any agreement or commitment which is accompanied by the payment of sums of money, the seller provide appropriate forms of guarantee, bank or insurance surety bonds, so as to guarantee that the money paid and to be paid will be returned;
- that, when the building has been finished and the sale completed, it should be covered by a ten-year insurance policy for damages from total or partial collapse or serious defects.
In general the purchase/sale is the contract having the purpose of transferring the ownership of a house or the transfer of some other right for the equivalent of a price; more generically it could be said that the purchase/sale of real estate is the formal agreement by means of which one party, called the seller, transfers to another, called purchaser, the ownership of a given property against payment of the price agreed on.
Our juridical system, in view of the extreme importance of real estate ownership, not only requires that the agreement of the parties is expressed in written form, but also requires the observance of certain essential rules, the presence of certain fundamental requirements and the contextual fulfilment of certain particular obligations.
Precisely for these reasons and above all for the purpose of safeguarding the high value of the stake involved, the task of dealing with real estate purchase/sales has been entrusted to the civil law notary, in his/her twofold capacity of public official and expert professional in the juridical field, who may also suggest alternative solutions better suited to achievement of the result hoped for in relation to each concrete case.
In general terms, the conveyance is the contract that transfers ownership of an asset or some other right in exchange for a consideration; more generically, one may say that a real estate conveyance is the formal agreement whereby one party, known as the vendor, transfers to another party, known as the purchaser, the ownership of a particular property in exchange for payment of the agreed price.
Given the extreme importance of real property ownership, our legal system not only requires that the agreement between the parties be in written form, but also stipulates the observance of a number of essential rules, the presence of some fundamental prerequisites and the fulfilment at the same time of a number of specific obligations.
For these reasons and especially in order to protect the large amount of money at stake, the task of carrying out real estate conveyances has been assigned to the notary in his dual role as public official and professional legal expert; he will also be able to suggest the most appropriate of the alternative solutions for reaching the desired end in each specific case.
The conveyance may rightly be considered the notarial transaction par excellence, considering all the actions the law imposes on the notary following settlement (to cite the more important ones: filing, cadastral registration, transcription, notification of the competent authorities specified by law etc.).
It is the notary who writes the contract after having established the intentions of the parties and after having obtained all useful information and carried out all the necessary searches for a successful conclusion of the conveyance.
It is the notary, too, who reads the contract to the parties who may not all be present at the same time: indeed, it is possible for the parties to be present at different times; the notary (who must in any case always be present) will assess the need, the suitability and the legal admissibility of such options.
If the parties so request or the notary considers it appropriate if not even necessary (this is the case of an illiterate or unsighted party), two witnesses who are not related to the parties and have no interest in the conveyance may be present at the reading of the deed.
The signatures of the parties and of any witnesses, as well as that of the notary, represent the final seal, the most emblematic and rightly most important moment of the conveyance (especially from an emotional point of view).
The notarial law requires a full signature with given name and surname (in other words, a full, clear and legible signature): so it is not simply a quirk of the notary to request this.
If one party is unable to sign, besides the need then for all parties and witnesses to be present at the same time, it is sufficient for the party to declare the reason for that inability.
The sale contract includes the personal data of both the vendor and the purchaser, including their fiscal codes, the description of the property to be transferred with an indication of its location, its nature and its boundaries, as well as its identification at the land titles office and a number of obligatory pieces of information regarding town planning and building regulations.
The vendor must declare whether the property was built before 1 September 1967; if the building took place after that date and in any case for any building intervention after that date, there must be an indication of the date and protocol number of the permit issued and the authority that issued it (see “Rights and Obligations”).
In addition, pursuant to decree-law no. 223/2006, the parties to the contract must declare the means of payment of the agreed price, indicating what method was used (cheque and/or bank transfer), unless the payment or part of it took place prior to 4 July 2006; in which case it is not necessary to show the means of payment (see “Rights and Obligations”).
It must also be remembered that all parties to the deed must indicate, on their own responsibility, whether they have used the services of an estate agent, whether such agent was paid the relevant commission and in that case what the means of payment were (see “Rights and Obligations”).
As regards the price, for conveyances between physical persons the actual purchase price must be declared as well as the fiscal value of the asset as determined by the cadastral return; it is on this last value that the purchaser must pay registration, mortgage and cadastral taxes upon settlement directly to the notary (see “Fiscal Profile”).
Where the vendor is a building or renovation company and the building was co