When purchasing a property in Italy you should go through 3 stages:
1) Proposta irrevocabile d’acquisto (reservation offer)
2) Contratto preliminare di vendita (preliminary contract)
3) Atto di vendita (deed of sale)
Once you have chosen your property you should engage the services of a solicitor, whether you buy through a real estate agent or directly from the vendor. An Italian solicitor’s knowledge of Italian Real Estate Law is invaluable and he is there to look after your interests and your interests only!
When buying a property in Italy the first document you will be called upon to sign is the so called “proposta irrevocabile d’acquisto” (reservation offer), this is normal practice when purchasing through an estate agent. On the other hand when purchasing directly from the vendor (private sale) this document is not normally used. This is one of the many reasons why a solicitor should always be engaged.
By signing the proposta irrevocabile d’acquisto you will be taking the property off the market for a limited period of time, normally 15 days. During which time your solicitor, and where necessary assisted by a surveyor, will make all the necessary searches to ascertain that the property is without any debts, mortgages, claims etc. Thereby assuring that there will be no unpleasant and possibly costly surprises during the last stage of the purchase. At this stage you will be required to pay a small deposit, which is normally held by the estate agent or solicitor until the offer is formally accepted (signed) by the vendor. Should you finalize the purchase, this deposit will be considered as partial payment of the purchase price. If the vendor does not formally accept the offer your deposit shall be returned to you. It is important to highlight the fact that the reservation offer is only binding for the buyer until formal written acceptance of the vendor. Once signed by both parties it becomes a legally binding contract.
Normally at this stage, buyer and vendor having agreed to go ahead with the conveyance will formalize their agreement with the “contratto preliminare di vendita” (preliminary contract). Some estate agents and especially private sales choose or recommend leaving out this particular essential part of the purchase process. This legal document is essential because it sets detailed terms and conditions of the sale. This is why its highly advisable to engage the services of a solicitor as one of the services they offer is to draft this contract where possible and when not at least examine it very carefully before you sign it.
One of the essential legal elements of the preliminary contract is the payment of a deposit (caparra confirmatoria), normally equivalent to a minimum of 10% of the purchase price. This deposit will not be returned if you back out of the contract without a valid legal reason on the other hand, if the Vendor changes his mind about the sale he/she will under Italian law have to refund your deposit in full. You have the right if you wish, to also claim an amount equal to the deposit through the Italian courts.
In the preliminary contract the parties also set the date to finalize the conveyance in front of the notary public.
The Notary is a public official who has the authority according to Italian law to validate contracts transferring the ownership of a property, he is also charged with paying all registry fees and cadastral taxes and carrying out the relevant searches on the property. But having engaged a solicitor beforehand you will be confident that no unpleasant surprises will be revealed at this late stage of the purchase process.
The notary is supposed to be an absolutely neutral and impartial party in the transaction. This is why he cannot be a substitute for a solicitor in the defence of the interests of the buyer. The only way to be assured of total impartiality is to engage the services of an independent solicitor.
The final step of the conveyance is the so called “atto di vendita” (deed of sale). The deed is drafted by the Notary in his office, it has to be fully compliant with the preliminary contract. So it is the preliminary contract that is the document setting all the essential elements of the transaction. Once the Deed has been signed by all those present at the signing, the balance of the purchase price is paid to the Vendor and the keys are handed over to the new owners.
A copy of the Deeds will then be given to the new owners approximately one month after the signing. This is because it takes approximately one month for the new deeds to be registered at the relevant Registry Office.
If one of the parties does not understand the Italian language, according to the law the deed of sale must be drafted in both Italian and English.
If the buyer cannot be present in front of the Notary he can give power of attorney to his solicitor who will sign on his behalf.
The notary will read and explain the contract, the buyer will be able to read the English version and through the support of a bilingual solicitor, is entitled to ask questions.
Proposta irrevocabile di acquisto : This is where an initial formal offer is made and a small deposit is left. The price you are willing to offer has been determined and also any conditions you may wish to make.
Contratto preliminare di vendita : This is the contract that sets out in detail the terms and conditions of the sale and also all the relevant cadastral and registry information. It is also known as a Compromesso.
Atto di Vendita : The moment when in front of a Notary public the exchange of contracts is made, the outstanding amount of the purchase price will be paid and the keys to the property will be handed over to the new owners.
Caparra confirmatoria : This is a deposit that is regulated under art.1385 of the Italian Civil Code . If a deposit is defined as a “caparra confirmatoria” it endows legal rights upon both parties.
Avv. Giandomenico De Tullio