Who is the Italian Notary [Notaio]?

Applying for a mortgage, buying a property, handing down an asset in a will, making a will and setting up a company: what are the risks in carrying out these legal procedures?
How can a foreign investor be aware of all the hindrances and pitfalls ensuing from italian ever-changing laws?
The Italian legislature establishes the professional figure of the Notary i.e. a public officer whom, by law, must be impartial.
In doing so, each party is equally protected; moreover, the State Government relies on him/her for tax collection and for economically relevant operations.
Drawing up the deeds does not simply mean filling out a form: rather, it entails providing incontestable documents.

Remits

The Notary is empowered by the State Government in order to confer public trust namely the status of legal proof concerning deeds he/she draws up.
Everybody, even the court, must accept as true what he/she establishes, unless a crime of forgery has been discovered.
A public deed proves:

• the source of the documents;
• the parties’ regarding statements;
• potential Notary’s declarations about facts occurred in his/her presence or carried out by him/her.

For these reasons, the Notary must personally ascertain the claimers’ will along with the goal they want to achieve; in this manner, a suitable deed will be provided by him/her.
The Notary must be autonomous and impartial regardless of who has engaged him/her throughout the course of his/her duties.

Liability

As a public officer the Notary must comply with the rules established in the ethical code assuring that:

• notary deeds are in accordance with the will of the parties;
• notary deeds are effective meaning in compliance with the law;
• restrictions or third parties’ rights (such as easements, foreclosures, mortgages, preemptions and so forth) regarding which the Notary did not warn the parties, must not affect legal effects of deeds.

Anti-money laundering checks

According to the law about regarding money-laundering, the Notary must verify the personal details in full, reporting any suspicious business deal to the UIF (Financial Information Unit) of the Bank of Italy.
This aspect remarks how the Notary acts upon private and public interest.

“A Real Estate Agent is a professional who relates two or more parties in order to close a deal, without being bound to any of them regarding of partnership, reliance or representation.”
[Art. 1754 Italian Civil Code]
Italian law establishes that a Real Estate Agent must be enrolled in an official register approved by the local Chamber of Commerce; this allows the Agent to work anywhere in the country.
He/she must be able to provide proper information concerning the commercial, legal, technical and taxation aspects affecting the property.

Property purchase in Italy consists of three key stages:

1. Irrevocable purchase proposal [Proposta irrevocabile di acquisto].
2. Preliminary agreement [Contratto preliminare di vendita].
3. Deed of sale [Atto di vendita].

Irrevocable Purchase Proposal

Ruled by the Civil Code [art. 1326], the irrevocable purchase proposal embodies the first step towards the purchase agreement;
it must specify:

• personal details in full;
• price offered;
• payment terms;
• deed of sale [date and place];
• the deadline;
• the clause “unless the approval of the mortgage”, if need be.

The vendor can accept or rejects the proposal.

Non-acceptance

If the vendor rejects the proposal, the buyer is free from commitments due to the loss of validity of the proposal.
In this case, if a down payment has been made, it must be given back.

Acceptance

If the vendor accepts the proposal, both parties must abide by the subscribed commitments. [art 1326 civil code]

The Preliminary Agreement [Preliminare di vendita]

The Preliminary Agreement is a genuine contract that obligates both parties to draw up the deed of sale; furthermore, it has to specify the detailed description of the property (data provided by the Land Registry Office), personal details in full, payment method and the purchase price.
It must also highlight all the mutual obligations to be fulfilled before the transfer of property. Although it is not compulsory to involve a Notary at this stage, though it is advisable; particularly from the client’s viewpoint, in order to obtain the proper legal safeguards. In doing so, the Preliminary Agreement can be transcribed in the land registries. The transcription works as a genuine reservation of the purchase of property; it is not only a private agreement between buyer and vendor, but it also protects the transaction against third party hindrance.
Therefore, the vendor would not be able to sell, rent or otherwise burden the property to anybody else, nor granting a lien on it; likewise, he/she cannot establish a negative easement or any other detrimental rights.
When the Preliminary Agreement is transcribed in the land registry, the property is legally unassailable.
The following taxes must be paid during the registration of the Preliminary Agreement; however they will be refunded during the deed of sale.

• 0.5% based on the downpayment;
• 3% stamp duty

The Deed of Sale [Rogito]

The Notary’s checks end with the deed of sale.
It is common practice that the conveyance occurs during the signatures. In the case of a building of flats, it is highly advisable that the Administrator is asked for a declaration that the fees have been already paid off.
The Notary must explain and read the entire content of the documents to the parties and to any sworn witnesses whose presence is legally required in specific cases (a foreigner unable to speak Italian, one of the parties incapable to sign and so on), being sure that they have understood the contents and legal effects.
The deed of sale, once read and approved, must be signed by the parties and witnesses; thereafter, it will be also signed by the Notary.
What the Notary certifies in the Deed of Sale is legally conclusive evidence for all purposes - even in the courts.

Taxes

Buying a property in Italy entails the payment of several taxes; they vary depending on the fiscal regime (whether it is a first home or not) and the type of vendor (an individual or a construction company).
At the time of the deed of sale, only the buyer is charged with taxes-payment.
If the object of the transaction is a non-first home, the deed of sale is affected by the following taxes:

• when the vendor is a construction company that sells the property within 5 years from the completion:
  • VAT, 10%.
  • Land registry tax, € 200 [fixed].
  • Mortgage tax, € 200 [fixed].
  • Stamp duty, € 200 [fixed].
  
• When the vendor is an individual or a construction company that sells after 5 years from the completion:
  • No VAT.
  • Land registry tax, € 50 [fixed].
  • Mortgage tax, € 50 [fixed].
  • Stamp duty, 9%.
  
  Land registry tax, mortgage tax and the stamp duty must be paid at the Notary’s office. during the the deed of sale.
  From the 1st of January 2007, the cadastral value is the taxable amount on which taxes must be calculated, no matters what is the agreement-price has been established in the deed of sale.