The purchase of a house in Europe does not only have to serve as a pleasurable vacation spot, a way to change one’s life or a simple dream which becomes reality. It could also be viewed as an alternative investment for the money earned during one’s life, even if the continuing weakness of the U.S. dollar is not an incentive for investors. The European Real Estate market, after previous problems, has grown in the last few years due to the world crisis of the stock markets. That’s because it’s not safe to put our money in unpredictable situations when the investment in real property is generally considered not to be a risk.
However, from this point of view it is necessary to consider taking the right steps when buying a property in Europe, especially with the different Civil Law based legal systems of nearly every European country (with the important exception of England). Let’s see how this works within the most important countries of the old continent.
First of all, one must consider that the United States’ legal system does not draw a distinction between “Lawyers” who plead in court and those who do not, unlike all the civil law jurisdictions such as Germany, France, Spain and Italy, which distinguish between “Lawyers” and “Civil Law Notaries” . The “European Civil Law Notaries” may be treated in part as the “Attorneys at Law” of common law systems and not as the “Notaries Public” who are simply authenticators and lack legal education. More particularly, it’s well known that the U.S. legal system is based on “Common Law”, or law developed by judges through decisions of courts and similar tribunals (called case law), although legislative statutes and executive action do still play a major role. Therefore, there are no documents with “public faith”: the documents are subject to a “ruling to the contrary” and citizen must have recourse to the courts to see their rights upheld. On the other hand, the principle of civil law is to provide all citizens with an accessible and written collection of the laws which apply to them and which judges must follow.
Taking a look at the whole picture, the “European Civil Law Notaries” frequently undertake work done in common law countries by the Titles Office and other Government agencies. Finally, if for instance, a US citizen wishes to buy property in any of these countries, they require a German “Notar”, a French “Notaire”, a Spanish “Notario” and an Italian “Notaio”, who is necessary to authenticate transactions of real estate. In the European legal system, the “Civil Law Notary” is a public official who is in a position of neutrality between the buyer and the vendor; this is the reason why he is not a substitute for a “Lawyer” who conversely will exclusively look after the interests of his client in this so-called “adversarial system.”
Your “Lawyer” will protect your investment, provide you with legal assistance, and act on your behalf whereas the civil law notary has to be an impartial and neutral professional. Therefore, processing a purchase of a house in Europe, beyond the civil notary, is absolutely essential and highly recommended to entrust a “Lawyer” to protect your investment and your interests. In fact, a European conveyancing is surrounded by a lot of steps. The most important to be considered are the Due diligence service, the purchase proposal, the preliminary agreement, the deed of sale and the taxation of the purchase.
In particular, it has to be noted that in the above mentioned European countries, signing the preliminary contract requires that the final contract be signed as well. This means that the preliminary agreement is binding for both buyer and seller. For example, if you are going to buy a single unit of a big residential development you should pay attention to all the legal aspects involving the purchase. In this case, European real estate developers (well, their “Lawyers”) usually prepare a standard contract for all buyers including the standard price, standard furniture and standard clauses. It has to be kept in mind that if you are a purchaser, you can obtain different conditions because it’s in your rights. In this respect, you can be helped by your “Lawyer” who can translate for you all the documentation and, being familiar with real estate transactions, can also check the Land Registry Office to see the titles of ownership of a land or a house.
Last but not least we consider the special case of Italy, a touristic destination highly sought by many Americans. The conveyancing, as regulated by the Italian Civil Code, is extremely safe assuming that the buyer will give normal care and attention as generally required for an investment of this importance. Moreover, Italy is a founding member of the European Union and a member of the Euro zone. For these reasons the Italian real estate market is not suffering any crisis, and in a couple of years many future building developments will be built particularly in southern Italy. On the other hand, it has to be noted that Italian Courts take a long time to reach a decision concerning litigation in real estate transactions. So much time that it can become very frustrating for the private buyer to wait for the decision of the judge.
Therefore, US or UK citizens who wish to buy property in Italy will need to engage a “Lawyer” who will have as a goal the realization of contracts that cannot be challenged by anyone and that must be respected on every point. Your “Italian Real Estate Lawyer” will not only take care of the due diligence, but will help in the reservation offer or will draw up the preliminary contract or will advise on the tax profile. The “Lawyer”, if provided the power of attorney, can also sign the deed of sale on your behalf in front of the “Civil law notary” and will perform all the steps necessary to buy a house in Italy. In particular, the lawyer will give you assistance in opening a bank account, in obtaining a fiscal number and a tax card, and in setting an Italian address.
Finally, keep in mind that property prices abroad may be significantly higher than property prices in the U.S. In fact, the extra cost for the property valuation, the translation, the “Civil Law Notary” certification, and for the eventual mortgage loan may also be a large sum. However, from our point of view and in light of the above mentioned reasons, there are strong incentives to invest in European properties.
The owner of an asset is not always able to sell it when and how he wishes. Similarly, 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 a laborious series of formalities. When purchasing a property (apartment, garage, commercial premises etc.), it is always necessary to check that it is in conformity with building ordinances, i.e. the existence of a building permit for its construction or “concessions” is necessary for any work subsequently carried out (although it is often the case that work done without authorization is 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 specification.
“Legale Agnoloni” executes the preventive controls to make sure the property you wish to buy is completely free of charges, foreclosures or any other legal form of restriction or limitation. We determine whether in fact the vendor is free to sell the asset and whether the purchaser in turn may legitimately acquire it.
Our due diligence will be focused on the following: the examination of the property’s ownership history (deed, inheritance or other), the legitimate current title and the disposability of the property, therefore the vendor’s full ownership; the verification of freedom from mortgages and transcripts injurious; the acquisition of updated real estate certificates (so called “visure catastali“); the analysis profiles of private international law; the consideration of all the administrative documentation (license, concession, building permit and Certificate of Land Use issued by the relevant Municipality); and the general verification of compliance with Italian Law.
The usual Italian 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. 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, the change is without legal effect.
“Legale Agnoloni” will furnish all necessary information as to the validity, nature and content of the document to be executed, so as to avoid unpleasant surprises and suggesting the most suitable and advantageous solutions from an economic viewpoint in each particular situation.
In the preliminary contract (the so-called “compromesso“) 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). A 1997 Italian Law makes it possible to register preliminary contracts so long as they are a public document or an authenticated private agreement. The registration of the preliminary contract protects the purchaser from any prejudicial event that may affect the property (e.g. encumbrances such as mortgages or foreclosures) between the preliminary and definitive contracts.
“Legale Agnoloni “carries out for you all the above-noted series of searches (vendor’s full right of ownership, property free of all encumbrances and covenants, land registry and town planning/regulatory compliance) which are advantageous before you sign the”compromesso“. By our work, the purchaser gets a complete legal picture of the situation, obtains essential information, 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 the purchaser might not have executed if the purchaser had been made aware of the complete situation or in any case would not have agreed to on those terms and conditions.
We will also prepare the preliminary contract and advise the best solutions for the specific case, carrying out all the necessary mentioned searches and explain to you through a personal approach which constraints and obligations may arise from the signing of a preliminary agreement, even if it is only privately produced. 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 surface area of the portion of the building and the proportion of the whole building under construction which will belong to the promise purchaser expressed in thousandths.
In Italy, the definitive contract to sign in front of the notary public and the preliminary contract have an instrumental link, so that the definitive contract has a declarative and re-enforcing function with respect to the preliminary contract. It means normally that no changes are possible. On the other hand, in Italian real estate practice, preliminary contracts on behalf of a person to be named are commonly used. Through this instrument, 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 going to acquire the rights and take on the obligations deriving from the contract.
So when you sign the preliminary agreement you should always verify that the contract gives you the possibility to choose as buyer a person who has yet to be named. Given the lengthy time between the preliminary agreement and the end of the transaction, “Legale Agnoloni” definitely suggests that it reserve for you this possibility at the moment of the signature.
The definitive contract to sign in front of the notary public and the preliminary contract have an instrumental link, so that the definitive contract has a declarative and re-enforcing function with respect to the preliminary contract. A notarized property conveyance gives rise to a series of rights and obligations for both parties (vendor and purchaser). While for most people 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 even though they are of equal relevance and importance.
“Legale Agnoloni” will suggest to you the best solution for protecting your rights based on the complexity of the subject and especially from the point of view of the need to assess each single case on its own merits. We can assist you during the Deed of Sale or also by representing you and executing the Deed on your behalf in notarized conveyance if you wish to give us the power of attorney. In fact, the parties need not be personally present in the notary’s office on the day of the transaction; they may confer a notarized power of attorney for the sale or purchase of property. Consequently, we will be personally present in front of the notary public doing all that is necessary for the contract to be made valid on behalf of the person or persons who conferred the power of attorney.
The Italian juridical system, in light of the considerable importance of real estate ownership, not only requires that the agreement of the parties be expressed in written form, but also requires the observance of certain essential rules, the presence of certain fundamental requirements and the contextual fulfillment of certain particular obligations. For example, 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. Moreover, in the deed of transfer pursuant to Law 151/1975, both purchaser and vendor must declare their matrimonial property arrangements. In particular the vendor must specify whether the asset being sold is the vendor’s own personal property and in what manner or by what right the vendor came into possession of it. 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. 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. If so, they must declare the real estate commission 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).
On a case-by-case basis through technical-legal consultation ZGML will be prepared to assist you in all the above operations to protect your interests. In particular, if you are a purchaser, “Legale Agnoloni” is experienced in protecting purchasers who buy a house before construction has been completed, having extensive experience with the Italian Decree Law n° 122 of 20 June 2005. This Decree provides “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.
When a property conveyance takes place, the Italian Tax Laws stipulate the payment of certain taxes and charges and the performance of other important tasks such as the registration of the transfer, the transcription of the contract and the so-called “voltura catastale“.
After the closing of the property transaction in which ZGML acted for you, we will furnish you with all the necessary closing documents entailing the validity of your title to said property from the vendor and in particular we will take obtain for you a copy of the notice of transcription from the Notary Public.
In this field, “Legale Agnoloni” also provides tax consultancy. We will advise you on the fiscal profile, assist you on the fiscal issue related to the cost of the deed of sale, and explain the tax treatment.
The issue is how to protect buyers who have paid a “deposit” and are still waiting for the building’s completion. The determination has to be done on a case by case basis because all situations are different. However, first of all, it’s necessary to note that the so-called “deposit” is something that doesn’t exist in the Italian legislation as related to the purchase of a house. What we are saying is that the definition of “deposit” is not appropriate for buying a house but is referred to in the different case of a lease contract (”contratto di locazione”) in which a tenant gives a deposit to a landlord to ensure him that he will refund any damage done to the property.
Technically the so called “deposit” in a sale contract can be one of the following three types:
c) Caparra confirmatoria
Each single preliminary agreement has to be checked to verify if money given in advance was considered an “acconto”, “cauzione” or “caparra confirmatoria” because the legal effects are completely different for each. Essentially, if we talk about a simple “acconto” the termination of the contract involves only the restitution of money given. If we consider the “cauzione” it has to be treated as if it were in a lease agreement. Finally, the “caparra confirmatoria” gives (in theory) a powerful right to the buyer.
In explaning this right, art. 1385 of Italian civil code says: “La caparra confirmatoria è una somma di denaro o una quantità di altre cose fungibili che, al momento della conclusione del contratto, una parte dà al l’altra allo scopo di rafforzare l’impegno di garantire l’adempimento. In caso di inadempimento l’altra parte può recedere dal contratto ritenendo la caparra, mentre se inadempiente è la parte che l’ha ricevuta l’altra può recedere ed esigerne il doppio”. It is the last part that catches our attention. It says that when the party who received the “caparra confirmatoria” defaults, the other party may terminate the contract and require that twice the amount originally deposited be repaid. But close attention is necessary because the following is the essential point: the non-fulfillment from which the right to receive twice the deposit comes, only arises under particular circumstances. Under Italian Law, article 1455 civil code, only “l’inadempimento di non scarsa importanza”,literally “the non-fulfillment of not small importance”, a concept similar “material breach” under U.S. law, gives the right to receive twice the original deposit.
Therefore the question is: would Italian courts judge as “l’inadempimento di non scarsa importanza” the delay of a builder in completing the building? Due to three reasons the buyer will have difficulty persuading the court. First, there are times when the delay will be considered normal. Second, the builder can claim that the delay was the result of force majeure and therefore not be considered liable. Moreover, a client is unable to recover on the bond which has to be provided by the seller to protect the purchaser (according to Italian Decree Law n° 122 of 20 June 2005 regarding “Provisions for the protection of the financial rights of the purchasers of buildings in the process of being built”) because it doesn’t cover the case of delay.
In conclusion, it is by no means certain that bringing a law suit against the developer can ensure the return of money. Even if one had a meritorious case, delay may also result from Italian courts, since they are famous to be slow in rendering decisions. To present some eye-opening numbers, the average duration of civil judicial proceedings in Italy at the trial level is 968 days and 1511 days on the appellate level. The average length of time from start to finish of a lawsuit is 6 and ½ years, with very high accompanying litigation costs.
First, the “certificato di abitabilità” and the “dichiarazione di conformità degli impianti a regola d’arte” are two completely different things.
The so-called “certificato di abitabilità” (in the past called also “certificato di agibilità) is a document concerning a property to be allocated for housing, which is issued by the municipality in whose territory the property is located and states the security, cleanliness, health and energy saving in the building.
Italian law does not obligate the issuance of the “certificato di abitabilità” and consequently the “Corte di Cassazione” (the most important Italian judge) has ruled that a deed of sale in the absence of this certificate cannot be considered illegal. Therefore, according to the interpretation given by the “Corte di Cassazione”, you can sell or rent your property even without such certificate.
So it has to be made clear that any deed of sale even without such certificate is valid (and it is not prohibited). Although it is not mandatory, you still need assurance, for example, of the health standards. On one level, therefore, from a prudent buyer’s point of view, it would be better if you get it. However, you can obtain guarantees from the seller in another ways.
Summarizing the ‘Certificato’s’ purpose, it is to insure that everything is in accordance with Italian health/safety/cleanliness and building regulations. You can get this assurance from the “certificato di agibilita’” found in Article 24 T.U. 380/2001 which states: “Il certificato di agibilita’ attesta la sussistenza delle condizioni di sicurezza, igiene, salubrita’, risparmio energetico degli edifici e degli impianti negli stessi installati, valutate secondo quanto dispone la normativa vigente.”
When you buy a property in Italy you will have to calculate additional expenses and costs over the purchase price.
For instance the following have to be paid: – the “Imposta Comunale sugli Immobili” which is an annual council tax calculated on the value of the property – the tax utilities for electricity, water and gas – the condominium expenses when your estate share some areas with other properties, such as garden, driveway, swimming pool or tennis court.
Also in Italy normally both buyer and seller pay the Italian Estate Agent Fees, ranging from 3 – 8% of the purchase price. Moreover there are the Notary fees which are obligatory and fixed by law. The Notary fee is charged according to the price of the property.
If you wish to buy a property in Italy but cannot or you do not want to be present in front of the Italian Notary the day of the deed of sale, you need to confer upon an agent the so called “power of attorney” (POA).
“Power of Attorney” is conferred via a legal document giving the person you choose the power to manage your assets and financial affairs. The document must be signed by you while you have the required legal capacity to give your agent clear and concise instructions. More precisely, it is a document that allows you to appoint a person to handle your affairs while you’re unavailable or unable to do so. The person you appoint is referred to as an “Attorney-in-Fact” or “Agent.” There can be a General Power of Attorney which authorizes your agent to act on your behalf in a variety of different situations or a Special Power of Attorney which authorizes your agent to act on your behalf in specific situations, such as for the purchase of a house.
Moreover please note that to buy an estate in Italy you need to make sure that your documents are ‘legalised’. Legalisation is a double check to make sure that the notary signature is genuine and recognized; this is done by government departments and embassies. Documents are checked by foreign embassies to make sure that the notary’s signature matches the one on their records.
The Foreign Office Certificate, for some countries like the UK, is known as an “Apostille” and it is attached under the terms of The Hague Convention. The “Apostille” is a marginal note that must be written on the original certificate released by the country of origin’s qualified authorities. The Apostille therefore substitutes “legalization” at many consular authorities.
According to the Italian Decree Law n° 122 of 20 June 2005, “concerning financial rights protection of purchasers of buildings in the process of being built, the bank guarantee/fideiussione covers only the case in which the builder is facing a crisis situation.” The first paragraph of Article 3 clearly states that “la fideiussione… deve arantire, nel caso in cui il costruttore incorra in una situazione di crisi di cui al comma 2, la restituzione delle somme e del valore di ogni altro eventuale corrispettivo effettivamente riscossi e dei relativi interessi legali maturati fino al momento in cui la predetta situazione si e’ verificata.”
Then the second paragraph of Article 3 specifies what a “crisis situation” is: “2. La situazione di crisi si intende verificata in una delle seguenti ipotesi: a) di trascrizione del pignoramento relativo all’immobile oggetto del contratto; b) di pubblicazione della sentenza dichiarativa del fallimento o del provvedimento di liquidazione coatta amministrativa; c) di presentazione della domanda di ammissione alla procedura di concordato preventivo; d) di pubblicazione della sentenza che dichiara lo stato di insolvenza o, se anteriore, del decreto che dispone la liquidazione coatta amministrativa o l’amministrazione straordinaria”.
Therefore if the fideiussione has been issued according to the Decree Law n° 122 of 20 June 2005, Art. 3, the buyer does not have the right to claim it, for example, in case of a simple delay of the completion due to the bad weather, which is not considered a “crisis situation”.
Moreover, one must note that the bank guarantees have an expiration date and it is clearly indicated that after the deadline they don’t give you, the purchaser, any rights. Finally according to Art. 1936 of the Italian Civil Code, all the bank guarantees have a maximum amount guaranteed. In other words, since the buyer is eventually entitled to claim the money he gave in advance to the builder, he will not receive the full amount if it is above maximum guaranteed.
All companies have a legal status, and as such they have assets that are distinct from those of the partners that constitute the company. They have a name, a registered office and hence are legal entities that are quite distinct from the individuals making up the company. From the organizational point of view, Italian companies can be broken down into the following types:
a)informal partnerships (società semplice);
b) general partnerships (s.n.c);
c) limited partnerships (s.a.s.).
2. Companies limited by shares:
a) joint-stock companies (s.p.a);
b) limited partnership with share capital (sapa);
c) limited liability companies (srl).
In partnerships, the assets of the company are not fully separate from the assets of the individual partners who, to different degrees, are liable for the debts of the company and so financial autonomy is imperfect. Instead, companies with share capital are recognized by the legal system as having a legal personality, and their assets therefore are perfectly distinct from those of its shareholders. As a result, the latter are never liable for the debts of the company except for a few cases envisaged by the law. Here, financial autonomy is perfect in that the shareholders are accountable for the debts of the company only in proportion to the share they hold.
The legal status is not attributed automatically to a company: the Memorandum of Association must be registered with the Register of Companies. The company is of Italian nationality when the incorporation procedures have been completed in Italy and the company has been registered with the Register of Companies. As such, an Italian company is subject to the organizational and tax regulations set forth in Italian Law. On the other hand the participation of foreigners in Italian companies, who are not citizens of a country in the European Union, is possible, within the limits envisaged by Italian Law and according to the condition of reciprocity.
A standardized company such as a so-called ”Società a responsabilità limitata” must first, at the time of incorporation,deposit 25% of the company’s capital contributed in cash in a bank account. The payment of the capital may be replaced by an insurance policy or by a bank guarantee for at least the same amount, though it is possible for the quota holders to pay the amount due at any time. If the company’s capital is not wholly paid at the time of incorporation, the company has a credit against the founding shareholders for payment of the outstanding portion of the capital. The directors have power to claim the payment at any time.
Then a public deed of incorporation (atto costitutivo), including the company’s bylaws (statuto) must be drafted and executed before a notary public by the quota holders or their authorized representatives. The notary public transcribes company bylaws on standard forms, which the notary provides. The cost of the forms and stamp duties are included in the notary fees. Registration tax, due within 20 days of incorporation, is paid to the notary public, who will also provide the registered public deed of incorporation. The registration fee schedule includes an electronic registration for 90 euros and stamp duty for 156 euros.
According to Article 2478 c.c., of the Italian Civil Code, a company designated as a limited liability company (”società a responsabilità limitata” or SRL) must keep the following corporate books: the minutes of shareholders’ meetings; the minutes of board of directors’ meetings; and the minutes of board of Statutory Auditors (Collegio Sindacale), which are subject to authentication. Also according to Article 2241 c.c. of the Italian Civil Code, a company designated as a stock corporation (società per azioni, or SPA) must keep two accounting books: the journal book and the inventory book. The company must not authenticate accounting books (according to Law No. 383/2001). All books are available in standard format at stationary stores or through a notary public. However, entrepreneurs can also use loose-leaf books at no additional cost. Law Decree 182/2008, which became effective March 2009, abolished the shareholder book requirement for S.r.l. (remove the words “shareholders’register”) and introduced Art. 2215-bis of the Civil Code which provides for the possibility of keeping all corporate books and accounting books in electronic format; in this case, a digital time stamp (and electronic signature) must be executed on a three months basis. The cost to register electronic books is subject to D.M. 23 gennaio 2004.
The applicant can electronically file a single notice (Comunicazione Unica) with the Register of Enterprises. This includes issuance of the tax identification number, VAT number, and registration with Social Security Administration (INPS) and Accident Insurance Office (INAIL). He or she must attach the forms requested by (i) the Register of Enterprises for the registration, (ii) the Italian Tax Authorities for immediate start of business, and (iii) by INPS and INAIL for the registration with these Administrations. Pursuant to Decree Law no. 185/2008, converted into Law no. 2/2009 dated January 28th 2009, companies are now required to provide a certified e-mail address on the registry of companies registration form. Furthermore, all businesses incorporated as a company must communicate their certified electronic mail address to the Registry of Companies by 29 November 2011.
After the Single Notice is filed, the firm receives all the documents within 7 days. All notices, communications and receipts of filing are sent to the Company’s certified email address. More specifically, the company immediately receives a reference number for the registration procedure as well as the receipt of the Single Notice filing with the Register of Enterprises. It also immediately receives the tax identification number and the VAT number. Within 5 business days, the company obtains registration with the Register of Enterprises. Within 7 days, the company receives the INAIL documentation and the INPS documentation. For the above mentioned operations the total to be paid is : 168 euros for the registration tax concerning the Revenue Agency + 155 euro or 185 euro for registration with the Chamber of Commerce (65 euro for the stamp fee and 90 euro or 120 euro for the electronic registration or registration with floppy disk) + 200 euro for membership fees.
When it comes to making a will in Italy it is recommended to get advice from a “Legale Agnoloni” professional who is familiar with Italian law, the law of the testator’s national jurisdiction and with taxation issues. Furthermore, when a foreigner owning property in Italy wishes to make a foreign will, it is recommended that the matter be considered under Italian Law and not the foreign law. Indeed one of the problems of will creation under Italian Law is that the law provides that the members of the immediate family of the testator are entitled to minimum statutory shares (so called “Successione necessaria”) in his or her Estate. So, it is not simply a question of the form of the will but is also a question of ensuring that the minimum shares granted by law to the various beneficiaries are complied with.
Under Italian law there are three recognised types of valid will:
1) Handwritten Will. This document must be: personally handwritten by the person making the will (testator); dated (determining the most recent will in the event of there being several); and signed, i.e. written on any paper or another medium, in any language. Although it is a simple document, it is advisable that it be checked by a “Legale Agnoloni” lawyer to ensure that all the formal and substantive legal requirements have been satisfied.
2) Formal Will. This document must be: drafted by an Italian notary per the instructions of the testator; read out loud by the notary to ensure that it complies with the wishes of the testator; signed by the testator in the presence of witnesses; recorded and stored with an Italian notary so that it not be lost or disregarded; created only with the assistance of a notary, with fees payable (notarial fees); disclosed to a third party (because it is a public will) and is not secret.
3) Secret Will. This document must be drafted or written by the testator and placed in a sealed envelope and then delivered to an Italian notary. The contents of the will remain secret until after the death of the testator at which time the sealed envelope is opened. Notarial fees for a Secret Will are less than those for a Formal Will.
The heirs, either by law or will, of a deceased property owner must submit a “death duty declaration” within 1 year of the deceased’s death. The place for submission of the death duty declaration is the Revenue office of the deceased’s last place of residency. It’s necessary to fill in several copies of Form 4, found at the Revenue office, and attach the following documents: death certificate; civil status certificate of the deceased and heirs; and list of self-determined taxes with receipt of payments.
ZGML can assist you in the death declaration acting on your behalf at the “Agenzia delle Entrate”. The transfer of property rights arising in case of death results in a tax on inheritance. The rates and allowance apply on the total value of net assets. They differ according to the relationship that binds the deceased. Such a relation includes marriage, kinship, a vertical or horizontal relationship to a certain degree, or other relationship. Basically, the inheritance tax is applied:
- to a spouse, and relatives in a vertical relationship, on the surplus of total net for each beneficiary (1,000,000 euros allowance): 4%;
- to brothers and sisters on the surplus of total net for each beneficiary (100,000 euros allowance): 6 %;
- to other relatives up to the fourth degree, and the like, vertically, and horizontally up to the third degree: 6%;
- to other persons: 8%.
“Imposta di registro”: This tax is applied whenever there is a new registration of title. Transactions will be taxed either at a fixed amount or as a percentage of the value declared in the Deed of Sale.
“Imposta ipotecaria”: This tax is applied when applications are made to make changes (for instance cancellations, additions and amendments) to the public register and when there is an application to lodge new or to discharge previous mortgages and restrictive covenants.
“Imposta catastale”: This tax is applicable when applications are made to the Land Registry to transfer existing registered titles. Transactions are again taxed either at a fixed amount or as a percentage of the value declared in the Deed of Sale.
When an individual wants to buy a house in Italy normally he has to pay the following standard rates on the paid amount: 7% for registry; 2% for mortgage; and 1% for Land Registry.
That’s the normal Italian tax implications for a purchase. But for first time buyers of full ownership personal use residential property, there is special treatment under Italian Law. This treatment entails granting tax benefits such as the reduction of registry, mortgage and land registry taxes which are applied to the property value declared in the public Deed of Transfer. If residential property is sold to individuals not acting for commercial, artistic or professional purposes, the taxable amount for registry, mortgage and land registry may be the cadastral value of the property.
Clearly the monetary savings can be very large. In fact, if one applies for first time home buyer benefits, the reduced rates are the following: 3% for Registry; 168 euros for Mortgage; and 168 euros for Land Registry. It’s important to add that if the property is bought from a construction company, the VAT payable will be 4% instead of 10% (with a saving of 6%) and the registration taxes will be fixed at 168 euros.
Basically, first time home buyers benefits apply to urban properties for residential purposes classified by the land registry office under categories “A1? to “A9?, and “A11?. This is contingent on the fact that they are not termed “luxury residences”, or properties under construction (unfinished) or in the process of being renovated and destined to be used as principal non luxury residences.
Remember that in order to take advantage of the first time buyer benefits you need to declare in the Deed of purchase, under risk of forfeit, that the property is located either within the Municipal territory in which you reside or that you intend to establish such residence within 18 months from the date of purchase. If the latter case applies, proceed with extra care because if the residence is not transferred to the Municipality in which the property is located within 18 months from the date of purchase the benefits will be forfeited and the office will claim back the standard tax payable increased by a penalty of 30% plus interest for payment in arrears.
The Italian civil judiciary is composed of three tiers of courts. At the first tier, there are 848 justices of peace, with limited jurisdiction (e.g. small car accidents, condominium disputes and disputes with limited sums at issue), and 167 tribunals, with general jurisdiction. At the second tier level, there are 29 courts of appeal. The final tier is the “Corte di Cassazione” (Supreme Court). Time limits for bringing court actions vary depending on the case. American citizens should consult an attorney licensed to practice in Italy to clarify statutes of limitation for a specific legal action.
Defense by a professional is generally required under the Italian system. Parties may proceed unrepresented by a defense lawyer in a limited number of cases (e.g. some cases heard by justices of peace, labor disputes with a low value at stake, etc.) A civil action is initiated by filing a notification of the case with the court registry. The notification packet will also include, when appropriate, any original summons, power of attorney, and any papers served. The party must state his or her place of abode or elect domicile in the district where the judge in charge of the case sits. The Italian language must be used throughout the proceedings.
A standard fee is payable in advance for any proceedings. The sum varies according to the type of proceeding to be initiated, amounts at stake and the level of court involved. Once notification to the court has been submitted, the registrar proceeds to list the case and assembles the court documentation package, to which documents of all sides involved will be appended. The presiding judge arranges the times and dates for the first appearance of the parties. Subsequent hearings will be arranged by the judge appointed to the action.
At the end of the debate phase, the court renders a judgment. A first-level judgment can be appealed before the court of appeals and that judgment in turn can be appealed before the “Corte di Cassazione” (Supreme Court). The length of civil proceedings in Italy varies depending on the issue at stake, the nature of the evidence and the legal motions filed by either party. The average length of proceedings before justices of peace is approximately two years. The average length of proceedings before tribunals, courts of appeals and the Corte di Cassazione (Supreme Court) is approximately three years.