Conveyancing ( pratica), or more correctly ‘conveyance’, is the legal term for processing the paperwork involved in buying and selling real property and transferring the deeds of ownership.
Conveyancing is strictly governed by Italian law and can be performed only by a public notary ( notaio), who’s a qualified legal professional and a representative of the state. A notary is responsible to the provincial authorities for the registration of land and property transfers at the local land registry ( catasto). He (they’re usually men) must follow a strict code of conduct and have personal insurance covering his professional responsibility and guaranteeing clients against any errors he may make.
A notary represents neither the seller nor the buyer, but the Italian government, and one of his main tasks is to ensure that all taxes are paid to the Ministry of Finance on completion of a sale. A notary usually acts for both the vendor and buyer, and must remain strictly impartial, although a buyer can insist on choosing the notary, as he usually pays his fee. Notaries’ fees vary, so you should check them in advance.
A notary won’t necessarily protect or act in your interests, and you should engage your own lawyer to ensure that everything is carried out to your satisfaction.
There are two main stages when a notary usually becomes involved in a property purchase. The first is the signing of the preliminary contract ( compromesso di vendita), when the presence of a notary isn’t mandatory, and the second is completion, i.e. the signing of the deed of sale ( rogito), which must be done in the presence of a notary. The notary is responsible for ensuring that the deed of sale is drawn up correctly and that the purchase price is paid to the vendor. He also witnesses the signing of the deed, arranges for its registration (in the name of the new owner) at the land registry ( catasto), and collects any fees and taxes due. The notary doesn’t verify or guarantee the accuracy of statements made in a contract or protect you against fraud.
Don’t expect a notary to speak English (few do) or any language other than Italian, or to explain the intricacies of Italian property law. A notary will rarely point out possible pitfalls in a contract, proffer advice or volunteer any information. The notary should check the following (this isn’t intended to be a definitive list):
Verifying that a property belongs to the vendor, as shown in the deed ( rogito) and listed at the land registry ( catasto) or that he has the legal authority to sell it. The owner should produce a certified copy of the deed. The descriptions of the property at the land registry and on the deed should be identical.
Obtaining a certificate that an old property is fit for habitation (certificato di abitabilità);
Obtain certificates of inspection for all electrical and gas systems and appliances, which must be inspected annually. These must be attached to the deed of sale ( rogito).
If you’re buying a listed building ( beni culturali), of which there are thousands in Italy, the notary should check whether the state wishes to exercise its right to pre-empt the sale ( diritto di prelazione). He should apply for the right to proceed with a sale after the signing of the preliminary contract and the state has 60 days in which to pre-empt it. If so, the contract becomes void and the seller is obliged to return your deposit. The notary should also check whether there are any restrictions over the use and possible future sale of the property. You should ask your lawyer to check that both these things have been done.
If any restoration work has been carried out or any alterations have been made to a listed building illegally, it can be confiscated by the state.
You or your lawyer should do the following:
Check that there are no pre-emption rights over a property and that there are no plans to construct anything (e.g. roads, railway lines, airports, shops, factories) that would adversely affect the value, enjoyment or use of the property.
Check whether there’s a zoning policy (piano regolatore) in the town or area that may affect a property you’re planning to buy.
Check whether the property is subject to a compulsory purchase order. If you buy a rural property ( casa rurale), it could be subject to compulsory purchase by a neighbouring farmer under a farmer’s rights ( diritto del coltivatore) law. This law allows farmers who earn over 70 per cent of their income from agriculture or agro-tourism to increase the size of their property by giving them the right to buy adjacent buildings or land for up to two years after it has been sold. To avoid this, you can have your lawyer draw up a document asking the farmer to confirm within 30 days whether he intends to exercise his right of purchase. If the farmer doesn’t declare his intention to buy the land within this period, he automatically waives any right to buy it in future.
Check rights of way ( servitù di passaggio). Land may have a mandatory right of way ( servitù di necessità) for a neighbour whose only access is via your land; this may be permanent or renewable.
Ensure that building permits and planning permissions are in order and that a property was built in accordance with plans and permits. Any modifications, renovations, extensions or additions (such as a swimming pool) must be included on the plans and be authorised. Plans must be checked against the cadastral plan at the land registry. In cases where a property has been inherited, check whether each inheritor has agreed to the sale. Heirs who haven’t been contacted have up to five years to contest the will.
If a property was previously owned by a bankrupt company, ensure that the liquidator won’t reverse the sale and claim it for the creditors;
Check that there are no encumbrances, e.g. mortgages or loans, against a property or outstanding debts. All unpaid debts on a property in Italy are inherited by the buyer. If you buy a property on which there’s an outstanding loan or taxes, the lender or local authority has first claim on the property and has the right to take possession and sell it to repay the debt. Any debts against a property must therefore be cleared before you sign the deed of sale ( rogito). Enquire at the town hall whether there are any unpaid taxes such as property tax or other charges outstanding against a property.
Check that there are no outstanding community (condominio) charges for the last five years (it may be possible for a vendor to pay the last year and ignore previous bills) and obtain copies of the co-ownership rules and the latest accounts of the community of owners (which should state whether there are any impending levies for repairs for which you would be liable);
Check that all bills for electricity, water, telephone and gas have been paid for the last few years. Receipts should be provided by the vendor for all taxes and services.
Before buying land, obtain a certificate from the local town hall stating what can be built on it and what the property and the land can be used for. It’s important to check the size of dwelling that can be built on a plot or how far an existing building can be extended.
If the property is a listed building, check that the notary has made the necessary enquiries concerning state pre-emption rights and restrictions on use or resale.
This article is an extract from Buying a Home in Italy from Survival Books.
