In general, for documents originating in a foreign country to be valid in Italy it is necessary, as in most legal systems, that they undergo a process of recognition and validation by the Italian diplomatic and consular authorities abroad: this is called “legalisation”, whereby those authorities certify that the document in question was lawfully produced in its State of origin and its content is therefore reliable. Given that legalisation is a procedure that involves an expenditure of time and resources that is hardly compatible with the requirements of modern commerce, most countries in the world - including Italy - have signed the Hague Convention of 5 October 1961 regarding the abolition of legalisation of foreign public documents. This Convention means signatory nations have allowed legalisation to be replaced, as regards documents from another signatory nation, by the appending of an Apostille, rendering the document valid in the foreign country. The Apostille is an attestation, prepared in accordance with a standard required by the Hague Convention, as to the legal qualification of the public official (or functionary) who has signed the document and the authenticity of his or her seal or stamp. This method means that a foreign national in possession of a document requiring validity in Italy can go to the authorities of the State in which it was issued - and a list of the appropriate authorities for each country is contained in the act of accession to the Convention itself - to have the apostille appended, thus making the document legally enforceable in Italy. The national authority designated by Italy for issuing apostilles for Italian documents to be used abroad is the public prosecutor’s office for notarial deeds, for court documents and for those regarding civil status, while for administrative acts the competent office is the Prefecture (Territorial Government office) of the place where the document was issued.
PURCHASING REAL ESTATE IN ITALY
Buying or selling a property (a home, office, shop, studio, land etc.) is one of the most significant moments in the life of a person, whether it is an investment or, especially, if the property is intended as the family home. In order to protect citizens, whether Italian or foreign, the Italian State requires that the contract be drawn up by an impartial public official who is a specialist in this area: the notary. By law, the notary acts as a third party who is independent of both seller and buyer, ensuring that the conveyance of the property complies with all legal requirements, in accordance with the common interests of the parties and with particular attention to the purchaser. The role of the notary in this case is seen in all its importance, both for the complexity of the operation and because of the need to protect the parties, from the first moment in which they reach an agreement to proceed with the deal: for this reason it is recommended that the purchaser (almost always the weaker party in the transaction) contact his own notary from the start of the negotiations, before signing a proposal to purchase or preliminary contract, since these already represent a binding commitment; in this way, every aspect of the transaction to be entered into can be considered together with the notary. So do not hesitate to consult your notary. The choice of notary is absolutely free (the choice may not be imposed by the estate agent or the bank providing a mortgage or by the seller) and it is up to the purchaser, who is required to pay the fees, unless otherwise agreed with the seller. The choice of notary, then, should be guided by the confidence the client has in him, the amount of time he is willing to spend and the advice given to ensure a safe purchase. If one does not know a notary, one can go to the nearest one. It is extremely important to check that everything is in order before signing any binding document and advice requested of the notary, even before the conclusion of the sale, does not have an additional cost. The parties have the right to consult the notary personally and ask him for all the clarifications and explanations that may be useful for understanding the consequences and legal effects of the deed. There are numerous activities carried out by the notary for the preparation of all documentation necessary for setting up the transaction. The notary first investigates the intentions of the parties so as to identify the type of deed most suitable for achieving the purpose desired by the client, within the confines of the law. So the notary must ask the parties for all the information that will enable him to understand fully the result they want to achieve. It often happens that, in conversation with the notary, the client ends up changing what had been the initial idea because, for example, there is a more suitable or more fiscally correct solution. Let us imagine the case in which the price is not paid in full at the time of the deed and part of the payment is postponed. In this case it is important to ask the notary’s advice on forms of collateral that can be provided to the seller and the corresponding costs. There are in fact various forms of protection: from the preparation of promissory notes to the registration of a legal mortgage, to a sale with reservation of ownership, in which case the transfer of ownership of the property takes place only upon payment of the last instalment of the price. Lastly, the recent economic crisis has led to the creation of additional contractual forms such as rent-to-buy, in which the purchase is preceded by a period of fruition of the property upon payment of rent, part of which is deducted from the sale price. Once the deed to be prepared has been defined, the notary must by law carry out a series of advance checks on legality, to ensure the contract will be valid and unassailable over time. The property may be bought by a private purchaser, by a company or by a construction company. In any case, the notary will ensure that:
The notary’s checks end with the signing of the deed. As a rule at the time of signing of the deed of sale, the handover of the property also takes place. Nevertheless, the parties may agree otherwise, deciding for:
- early handover, it being understood that the seller remains the owner of the property and therefore responsible for it under the law;
- delayed handover to meet the needs of the seller, a clause being inserted in the contract of sale setting a time limit by which handover must be made, if necessary with provision for a penalty for any delay.
To protect the public, the law provides detailed rules for the preparation of the deed, in particular:
The phases of a sale are many and often complex, and do not come completely to an end with the signing of the deed, given that the notary must undertake an important series of steps at the Public Registries, including lodgement and fiscal registration.
The Preliminary Contract (commonly called a “compromesso”) This is the first contract that the seller and the buyer must sign. Sometimes, however, the preliminary contract (“compromesso”) is preceded by a purchase proposal (“proposta d’acquisto”). With the compromesso, the party agrees to sell/buy; the total price of the property is set, as well as the terms of payment, the actual timing of the sale and the amount of the advance payment (down payment/deposit) that is paid at that moment to the vendor. This preliminary agreement (even if it is concluded privately) gives rise to commitments that are legally enforceable. They pose constraints for both the seller and the buyer: if after payment of the deposit the buyer decides not to buy the property, the seller may retain the deposit; but if the seller decides not to sell, the buyer is entitled to receive back an amount equal to double the deposit paid. It should also be pointed out that if the preliminary contract is made with a notarial deed, the contract can be “transcribed” into the registries: in this way the buyer is protected from any problem that may arise during the period of time between compromesso and completion of the deed, such as mortgages, foreclosures or bankruptcy of the seller. In case of insolvency of the seller, for example, registration of the preliminary contract allows for recovery of all or part of the amounts paid. This suggested approach offers the best protection for the buyer.
Activities Subsequent to Completion of the Deed.
Even after the signing of the deed, the notary is required by law to perform a series of tasks, within a short time, which will ensure on the one hand that the State receives payment of its taxes, and on the other publicly advising third parties and establishing the certainty of the transaction for the benefit of all citizens. The notary is obliged to carry out, within a brief time-frame: