How to buy a house in Italy

In order to buy a house in Italy there are some important steps to follow. Although there is no need to turn to a real estate agent, it is advisable for the parties to sign a preliminary contract with which they mutually agree to sell and purchase a property by signing a deed on a specific date. With the preliminary contract there is no transferring of ownership but only a promise to sell and to purchase in the future. After the preliminary phase, the parties must turn to a notary before whom they stipulate and sign a definitive contract (the “deed”), by which the transfer of ownership takes place in favor of the purchaser with all its legal and fiscal consequences. Once the deed is finalized, the notary must carry out a few duties, starting from the registration of the act at the Italian Revenue Agency and at the Land Registry, the transcription of the act at the Real Estate Registry, together with the payment of taxes.

How to buy a house in Italy

Here are the steps to follow in order to buy a house in Italy:

1) Preliminary phase (not compulsory):

1-A) real estate agent and “irrevocable offer”;

1-B) preliminary contract.

2) Definitive phase (compulsory):

2-A) the “deed”.

3) Consequent fulfillment (compulsory):

3-A) payment of taxes, registration, and transcription of the deed;

3-B) forwarding a copy of the deed to the administrator of the condominium (if applicable).

In accordance with art. 1470 of the “Italian Civil Code” (hereinafter “c.c.”), “sale and purchase” is an agreement whose object is the transfer of ownership of a property or the transfer of other rights for a price. The purchase agreement concerning real estate is therefore a formal agreement with which one party (seller) transfers to another (purchaser) the ownership of a specific property upon payment of the agreed price (art. 1470 et seq. c.c.).

Under art. 1350, no. 1), c.c., contracts that transfer ownership of real property must be in the form of a public act (“deed”) or of a private writing (“private deed” or “private written work”), under penalty of nullity.

In the sale and purchase agreement obligations of the seller are: 1) to deliver the property to the buyer (in the state it was at the time of the sale), 2) to let him acquire the property, and 3) to guarantee a “free and clear title” and that the same has no defects (art. 1476 c.c.).

Pursuant to art. 1498 c.c. the buyer must pay the price at the date and place determined by the contract.

Under art. 1376 c.c. (“Contracts with real effects”) the buyer becomes owner of the property not when he pays or receives the good, but when the contract (the deed) is regularly concluded, which means that it is drawn up in writing as a notarial deed (under penalty of nullity pursuant to art. 1350 c.c.), signed and completed with every element.

The Italian civil code also establishes that the expenses of the contract of sale and purchase and other accessory expenses are borne by the buyer, unless it has been agreed otherwise (article 1475 c.c.).

Especially when the contract is concluded between private parties, the property is assessed at a flat rate and not per meter, generally because this reduces the possibility for the parties to request increases or decreases of the price if the property is a few meters bigger or smaller than stated in the contract.

After the deed is regularly concluded, specific Italian laws and regulations require that the definitive contract is registered at the Italian Revenue Agency (“Agenzia delle Entrate“) and transcribed at the Real Estate Registry (“Conservatoria“) in special registers in which ownership of properties is annotated. Especially for these purposes, although a private writing is by itself sufficient to perfect a valid contract of sale (which must have all the essential elements of the contract), parties turn to a “Public Notary” who, empowered by law to either draw up the contract in the form of a “public deed” or to authenticate the “private deed” drawn up by the parties, carries out all the formalities that follow the signing of the deed.

As a matter of fact, in Italy an important role in the sale and purchase of a property is played by the “Public Notary”, who must have a degree in Law before taking a public competitive examination. Although he/she is self-employed, in some specific cases he/she performs public functions. For this reason, it is said that in the exercise of its functions the notary is a public official who guarantees the truthfulness and legality of acts that are subscribed before and by him.

1) Preliminary phase

1-A) Real estate agent and “irrevocable offer”

Just like everywhere else in the world, those who want to buy a house in Italy and have no intention of seeking the right property on their own can turn to a real estate agent who connects two or more parties (the demand and the offer) in order to conclude a deal, without being connected to any of them by cooperative relations, dependency or representation (art. 1754 c.c.). Only agents who are enrolled at an Italian Chamber of Commerce can legitimately perform this task.

In order to buy a property in Italy it is not necessary to involve a real estate agent. However, if (and only if) the deal is concluded as a result of his/her intervention, the agent has the right to a commission (art. 1755 c.c.) that, on average, is around 2%-4% of the price of the deal plus a sales tax called IVA (VAT/sales tax) which is currently at a rate of 22%. The agent is entitled to ask for a commission from both parties, as well as to ask reimbursement of expenses to the party on whose behalf they were borne even if the deal is not concluded (art. 1766 c.c.). Nevertheless, considering many aspects such as the international monetary crisis, nowadays many agents tend to ask only the buyer to pay commissions and forgo expenses. In case the deal is concluded as a result of the intervention of the agent, his/her name has to be included in the contract (see below); otherwise he/she will not be entitled to a commission.

If the potential buyer decides to turn to a real estate agent, after he chooses the house he would like to purchase, the agent will normally ask him to subscribe an “Irrevocable offer to buy”. This proposal, which expresses the commitment of the buyer to conclude the contract, should contain:

• identification of the parties;
• description and condition of the property;
• statements concerning certifications, mortgages, foreclosures, etc.;
• price offered;
• terms and conditions of payment (generally the buyer gives the seller a deposit by attaching a nontransferable check in favor of the vendor to the proposal. This will then be returned in the event the proposal is not signed. In case the proposal is accepted, eventual other deposits and the balance are usually paid by wire transfers or nontransferable checks in accordance with Italian law);
• date within which the deed is intended to be signed;
• term (usually 15 days) after which the proposal loses its effectiveness, even though the proposer can consider the late acceptance effective, provided that he/she gives immediately notice to the other party (art. 1329 c.c. states that if the proposer is obliged to finalize the proposal by a specific time, the revocation prior to that time is without effect);
• other terms proposed.

When the seller signs the proposal for acceptance, it becomes a real preliminary contract (under art. 1326 c.c., the contract is concluded at the moment when whoever made the proposal has knowledge of the acceptance by the other party), subject to registration, after which parties can sign the deed directly. It is important to consider that under art. 1326, par. 5, c.c., acceptance which does not comply with the original proposal equals a new proposal, after which a new acceptance by the original proposer is necessary.

Since in many cases irrevocable offers are not extremely detailed, it is possible to specify in the proposal that, after the offer is accepted by the seller, the parties will reproduce the contents of the proposal in a preliminary contract for the purpose of adding elements not covered in the proposal itself.

1-B) Preliminary contract

A preliminary contract is a real contract in which the parties involved (promissory buyer and seller) mutually agree to sell and purchase a property by signing a “deed” on a specific date. Therefore, with this contract there is no transferring of ownership but only a promise to sell and to purchase in the future. Parties through a preliminary contract largely predetermine what they will want to include in the deed.

The preliminary contract can have the form of a simple private agreement or of a notarial act (in this case it is also transcribed at the Real Estate Registry, in accordance with art. 2645-bis c.c.), but in any case, pursuant to art. 1351 c.c., it shall be drawn up in the same form prescribed by law for the final contract (i.e. written form) otherwise it will be null and void.

Obviously, preliminary contracts written by notaries have higher costs. Apart from registration fees (“imposta di registro”), cadastral tax (“imposta catastale”) and mortgage tax (“imposta ipotecaria”) (due at a fixed amount), the buyer will have to pay the notary’s fee.

However, a preliminary contract written by a notary has significant guarantees, more than the preliminary written directly by the parties. These are, for example, the transcription of the contract at the Real Estate Registry (see below), the special privilege in favor of the promissory buyer who, in case of failure to perform the preliminary by the promissory seller, can sell the property at auction in order to recover the amount he has paid, just as if he had a mortgage in his favor, and also that the signatures of the parties are certified by a public notary, so no one can disclaim them. Considering the above elements, it is possible to understand how much easier it would be to assert rights before a Judge in the event of a dispute.

For the purpose of the validity of the preliminary contract it is not necessary to specify all elements of the future contract. It is sufficient that the parties agree on the essential elements.

An Italian preliminary contract usually contains:

• identification of the parties;
• consent of the parties to sell and purchase a specific property;
• exact description of the property covered by the contract (address, type, size, garages, attic, basement, boundaries, cadastral and urban data, intended use, etc.);
• specification that the parties are aware of the actual state and legal status of the property;
• date of the deed;
• price agreed between the parties;
• terms and conditions of payment (generally the buyer gives the seller a deposit by attaching a nontransferable check in favor of the vendor to the proposal. This will then be returned in the event the proposal is not signed. In case the proposal is accepted, eventual other deposits and the balance are usually paid by wire transfers or nontransferable checks in accordance with Italian law);
• statement that with the deed there will be transfer of ownership from the seller to the buyer;
• the agreement that the promissory buyer will enter into possession of the property in question simultaneously with the signing of the definitive contract;
• obligation of the seller that with the deed he will guarantee a “free and clear title” and that the property has no defects;
• statement by the parties concerning their marital status and their matrimonial property regime for the correct transcription of the contract, pursuant to art. 2659 c.c.;
• specification concerning how to apportion between the parties the condo fees until the date of the deed (if applicable);
• usually the parties declare that the preliminary contract is subject to registration tax at a fixed rate, and that a registration tax at a rate of 0.50% on the amount paid as a deposit is also due (this will be added to the registration tax due for the deed at the time of its registration).

As mentioned above, if the preliminary contract has the form of a notarial act it can be transcribed at the Real Estate Registry (art. 2645-bis, par. 1, c.c.). Nevertheless, according to art. 2645 bis, par. 3, c.c. the effects of transcription of the preliminary contract shall cease and shall be deemed as never produced if within one year from the date agreed between the parties for the conclusion of the final contract, and in any event within three years from the date of the transcription of the preliminary, the transcription of the final contract (or of other act otherwise constituting execution of the preliminary contract or of the judicial request referred to in art. 2652, par. 1, number 2), c.c.) is not performed.n1

2) Definitive phase

2-A) The “deed”

As far as transfers of ownership of real estate go, after the irrevocable offer or the preliminary contract or simply when the parties reach an agreement (without signing the above mentioned agreements), in order to sell and purchase the property the parties must turn to a notary before whom they stipulate and sign a definitive contract, the “private deed” or the “deed”, by which the transfer of ownership takes place in favor of the purchaser.

As a matter of fact, the signing of the deed establishes the moment in which the property is transferred from the seller to the buyer with all its legal and fiscal consequences. For example, if after the conclusion of the contract but before being turned over the property sold should be damaged or destroyed (e.g. an explosion that destroys the property occurs), the risk of deterioration is borne by the buyer. This also means that if the buyer has not yet paid the price, he is still obliged to pay for it, even if the property has been destroyed.

In most cases parties decide to stipulate a public deed before the notary, not only because generally parties do not have a high level of knowledge of the law that enables them to perfectly reproduce in a contract their own intentions and conditions, but also because, as said above, after the definitive contract is signed it must be, among other things, registered and transcribed.

In the case above, the parties and the notary will gather (usually at the office of the notary) and the notary will perform a series of checks to verify that every formality is correct, that the property is actually owned by the seller, that it is free from mortgage, foreclosures, rights of third parties, that it complies with the city regulatory plan, etc.. The notary will then prepare the contract, read it out in the presence of the parties, which, if they consider that everything is correct, sign the agreement. The notary himself signs the contract thus giving it nature of a public deed. Usually together with the conclusion of the deed, the seller gives to the buyer the keys of the property, with which he takes possession of the estate.

The deed shall contain all the essential elements for it to be considered as a public deed, such as:

• identification of the parties;
• consent of the parties to sell and purchase a specific property;
• exact description of the property covered by the contract (address, type, size, garages, attic, basement, boundaries, cadastral and urban data, intended use, etc.);
• specification that parties are aware of the actual state and legal status of the property;
• statement by the parties concerning the status of energy, urban and utilities systems and related certifications;
• price agreed upon the parties;
• terms and conditions of payment (generally the buyer gives the seller a deposit by attaching a nontransferable check in favor of the vendor to the proposal. This will then be returned in the event the proposal is not signed. If the proposal is signed, eventual other deposits and the balance are usually paid by wire transfers or nontransferable checks in accordance with Italian law);
• statement by the seller who waives any legal mortgage that may arise from the contract;
• usually the deed contains a provision by which the lack of transcription, within a period agreed by the      parties, of the judicial request of termination for breach of contract, due to non-payment of the balance within the agreed period, will be considered index of occurred and punctual payment of the balance itself;
• assurance of the seller of a “free and clear title” and that the property has no defects;
• indication of precedent transfers of ownership up to the seller (in order to prove that the seller is the owner of the property);
• statement by the seller that the property in question was built before/after September 1, 1967;
• expressed agreement that the possession of what is sold is given starting from the day of the deed (or another day agreed by the parties), and therefore that all the expenses and fees concerning the time prior to the sale and purchase act shall be borne by the seller;
• agreement between the parties concerning who shall bear ordinary and extraordinary condo fees requested after the deed but referred to a time prior to the deed, to establish until when the fees will be borne by the seller;
• statement by the parties that the contract has been concluded as a result of the intervention of a real estate agent, duly registered at a Chamber of Commerce, and also what amount is due to the agent and by whom;
• statement by the parties concerning their marital status and their matrimonial property regime for the correct transcription of the contract, pursuant to art. 2659 c.c.;
• statement by the parties that expenses arising from the contract shall be borne by the purchaser unless otherwise established by law (art. 1475 c.c.);
• statement by the parties that the deed is subject to a registration tax;
• eventual buyer’s request of application for fiscal benefits under Law December 28, 1995 n. 549, art. 3, par. 131;
• statement by the public notary concerning the number of pages of the act, that it has been read in front of the parties who approved it and signed it.

In order to sign a deed parties will need the following documents:

• identity card (and residence permit for non-EU citizens) and personal tax code (both parties);
• copy of the preliminary contract (if there is one) (either party);
• extract of the act of marriage (in Italy spouses can choose the regime of communion or separation of patrimony. Therefore, it is necessary to verify the property regime of the spouses in order to correctly determine the owner of the property) (both parties);
• act of origin of the property (copy of the precedent deed/declaration of succession) (seller);
• possible building agreements (seller);
• cadastral data and plan which is generally signed by the parties and attached to the contract (seller);
• copy of the certificate of energy performance (seller);
• certification of conformity of the utilities systems (seller);
• possible certificates of permission to build, variations, amnesties, habitability and fitness for use (seller);
• copy of the condominium regulation (if applicable) (seller);
• generally, the seller delivers to the buyer a letter in which the administrator of the building states that the seller has paid all condo fees due up to the date of the contract (if applicable);
• possible copy of check/bank wire with which the deposit was paid to the seller (buyer);
• possible copy of check/bank wire by which the real estate agent was paid (usually the buyer).

In many cases, the buyer may have to apply for a loan to flashapply.com company to finance the purchase. Usually, the parties agree to stipulate both contracts (sale and loan) on the same day at the bank offices or at the office of the notary.n2

3) Consequent fulfillment

3-A) Payment of taxes, registration, and transcription of the deed

Once the deed is finalized, the notary must carry out a few duties, starting from the registration of the act at the Italian Revenue Agency and at the Land Registry (“Catasto“), the transcription of the act at the Real Estate Registry, together with the payment of taxes.

In case of transfer on the basis of a sale and purchase act, taxes applied are: registration, mortgage, and cadastral tax. These taxes are (usually) borne by the purchaser and paid by the notary at the time of the registration of the deed.

In case the parties are two private citizens, the registration tax for residential property is not calculated on the value of the property declared in the deed, but on the cadastral value of the property, and in case the buyer is purchasing his “first home” he may be eligible for fiscal benefits, which means that taxes are due in lower rates.n3

Only after the payment of mortgage and cadastral taxes it is possible to fulfill two other formalities concerning the deed, such as its cadastral registration at the Land Registry and its transcription at the Real Estate Registry.

The Land Registry contains unique data of every (registered) property in Italy, and it assigns a value to every real estate by which the amount of taxes due by every owner is calculated. Since each property has an accountholder of the right of ownership, the cadastral registration has the purpose of changing the accountholder (just like when you buy a car). However, it is good to keep in mind that this register has only fiscal purpose and, therefore, with regard to the determination of the ownership of a real estate property the only valid register is the one at the Real Estate Registry.

Transcription of the deed at the Real Estate Registry is a compulsory compliance by which the purchase becomes enforceable against third parties (with the signing of the deed the transfer of ownership is enforceable only between the parties of the contract). It is usually said that transcription of a deed has publicity purpose which consists in informing third parties that the property in question has been sold.n4

Transcription is carried out by submitting a note in which the data of the deed and a specification that it takes place against the seller and in favor of the purchaser are indicated. A hard copy of the act is also required.n5

3-B) Forwarding a copy of the contract to the administrator of the condominium

According to art. 63 of the “Provisions for the implementation of the Civil Code and transitional provisions”, whoever sells rights of a property is jointly and severally obligated with the successor in title for contributions accrued until such time as a certified copy of the title which causes the transfer of rights is sent to the administrator of the building in question.

The text above should be read together with art. 1130, no. 6), c.c., new text, which adds to the powers of the administrator the keeping of a condominium register containing the details of individual condominium owners and tenants, including their fiscal code, residence or domicile, cadastral data of each housing unit, as well as any condition relating to the safety of the common parts of the building. Any variation of the data must be submitted to the administrator in writing within sixty days.

Therefore, the transmission to the administrator of a certified copy of the deed is essential in order to release the seller from the obligation of contributing to the condominium expenses. However, it is considered possible to transmit a document equivalent to the certified copy of the deed, such as a statement issued by the notary which certifies that the signing of the act actually took place, provided that it contains the same guarantees of authenticity and certainty as a certified copy of the deed.n6

Claudia

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