11159 When the seller does not cancel ipoteche

Hi, can you provide more information? What type of ipoteca? What makes you think it hasn't been cancelled (i.e. what's your proof?) what did your atto say exactly?
It can sometimes take a long time for the ipoteca to appear to be cancelled in the conservatoria even though the proper atto has been deposited...also what kind of ipoteca was it? A bank mortgage? If so, I believe (need to check though) that the law was recently changed about this and a notary deed is no longer required to cancel the ipoteca as long as the loan has been paid off in full.
Ideally this should be ascertained before you complete (often the deed of cancellation will take place on the day you sign, sometimes with the same notary, in which case obviously the cancellation will not have taken place by the time you sign).
Can you give more info please?

Thanx for your response . . i know they have not been cancelled because I had someone run a check . . the atto has a section headed Garanzie detailing 3 separate "ipoteca legale" which together come to 85% of the declared value of the property. At the end of that section it says "La parte venditrice si obbligare a cancellare, a propria cura e spese, le ipoteche innanzi citate". They are in favour of Marcheriscossioni Spa in Jesi and Equitalia Marche Due Spa in Macerata.

Let me know if any other info would help

If your deed was in May then it should be showing up in the conservatoria by now doing a computerized "visura"...however, to clear up any doubt I would pay a visit to the Conservatoria in Question (at the Agenzia del Territorio). If indeed the ipoteche have not been cancelled then you need to contact the vendor - possibly through a lawyer (bearing in mind this will cost you). Unfortunately the two companies you mention seem to be tax collectors, and the ipoteca in question is an ipoteca legale (as opposed to an ipoteca volontaria, which is used for mortgages for example). From this information I am assuming that these are tax liens. You obviously knew about these when you purchased, in which case I assume you also had proof that the debts had actually been paid off before you completed? In which case the cancellation of the ipoteche is a formality and probably just needs chasing up. If not (you don't know if the debts have been paid off) then it's much more worrying. If you contact me by PM I will have a look at the atto for you to see exactly what was said, then I suggest you contact a lawyer.

[quote=Celanese;105309]Thanx for your response . . i know they have not been cancelled because I had someone run a check . . the atto has a section headed Garanzie detailing 3 separate "ipoteca legale" which together come to 85% of the declared value of the property. At the end of that section it says "La parte venditrice si obbligare a cancellare, a propria cura e spese, le ipoteche innanzi citate". They are in favour of Marcheriscossioni Spa in Jesi and Equitalia Marche Due Spa in Macerata.

Let me know if any other info would help[/quote]
both the named companies are official collectors of debts for government agencies ,revenue and so on they do not listen or answer to anyone outside of these, if christ owed tsome money they'd have carted the cross away, find a lawyer immediately before they take over your house.

Have to agree. We were contacted recently by Equitalia Marche for non-payment of ICI for 2005. In fairness to them, they'd taken almost 3 years to send us a reminder, and it was something that I'd managed to file away, rather than paying. My fault entirely.

Having said that, it's a good idea to follow up asap. With the "mora" we'd been sent, we then had 60 days to pay up. You might be able to get some information from your local comune if the debt relates to ICI. I think that Equitalia also deal with refuse collection tax, so the comune would also be able to help you with that. You could also go back to the notaio to ask for information there.

i think this sort of thing happening ...worrying as it is for Celanese ... and bravely posted... goes a long way in my mind to making it noteworthy for people to check the process far more carefully here when they buy a property...

its almost essential if there is something you are not sure of in an act to stop it there and then unless compliance before the fact is proved...ie never buy a place where the property has a debt until you have seen proof that it has been removed... doesnt really matter too much about how its registered as being clear of debt or no... the way they do things on paper here takes so long that someone could sell the same house three days in a row to three different sets of people before they caught up with them.... so see written receipts from the people who were owed with bank statements showing the payment has been made... that's the only acceptable proof

the words that you quote are pretty well standard and the important part to my mind is having the compromesso drafted in such a way that long before you get to the act this standard declaration is within the compromesso and makes the final act dependant on any debts being paid... in that way the notary will not let the act continue...

to my mind also the notary in your case unless he/she explained the risk to you when you signed with out seeing proof of the debts being cleared is not properly doing their duty.... in fact i cannot imagine a notary letting this go by so easily... you didn't buy the place at auction or something like that....

anyway its a timely reminder that there are going to be lots of these debts hanging around in the future as people struggle to meet payments on whatever... not just mortgages and any debt not settled will attach to property.... it also shows that in some of the replies that where you think you might well be avoiding things like rubbish tax or other forms of statutory payments these things always get sorted...Italy being slow ,steady and uncompromising in this respect

sorry your posting highlights something that is often not realised when people buy here, really hope this works out as some administration error... lawyer is best advice... there are some good ones mentioned on the forum...

I am very surprised with this case, as I thought that it was the notary's duty to ascertain that all standing debts were being paid at the time of the purchase. This is standing practice everywhere. I remember a case when we purchased an apartment in Spain and the bank representative was at the notary's office because the previous owner had a mortgage on the property and he was there to collect his money as well. The owner was not given the lot, we were asked to have different bank cheques to pay those outstanding debts and the notary gave us a title free of any encumbrances.... but he was checking also that the monies were being paid. I don't think that there is much difference in the way of conducting their business between a Spanish or an Italian notary, and normally they make sure that you fully understand and are aware of any particularities of the document you are signing. My advice is to go and see the notary first and hear what he/she has to say about this matter. But I agree with the others, if there is a serious problem you urgently need a lawyer. Best wishes and tell us how you go.

Before Celanese and everyone else panics, it may well be that the notary did in fact do this, the debts were paid off and the outstanding liens needing to be cleared are a formality. However, I agree, the notary's job should have been firstly to make sure the buyer understood the situation exactly so that the deed could be prepared according to BOTH parties wishes and secondly to make sure the debts were paid off (unless he had agreed - obviously in this case - to take them on). I've been present at countless atti where the notary went to great lengths to show and explain to the buyer that the previous mortgage had been paid off, although the lien would not "appear" to be cleared for some months. The buyer in this case obviously understood the liens were there (having asked someone to check that they had indeed been cleared) so I am hoping that the case is the former, i.e. that the debts had been paid, all that was remaining was the formality of clearing the liens officially. Maybe Celenese can fill us in later (the people who have posted in this thread are genuinely concerned Celenese, I can assure you).

Adriatica is correct when he says people need to be careful about paying the little taxes too... the local councils can and will place a tax lien on your property for failure to pay even an ICI bill or tassa rifiuti ((after reminders, accertamenti etc - they won't do this if you are overdue by a few months or even a year but eventually they will do it).

I find this odd - when I have clients buying a property with ipoteca the notaio cancels the ipoteca in person with both buyer and seller, the notaio and myself toddling off to the office or bank in question immediately after the signing of the act with the notiao clutching the payment. It is the only way to be sure that it happens. At the risk of sounding pessimistic, the problem is that not cancelling ipoteca resolves nothing. The owner, even if having promised to do so, wont have the money to cancel it after the event and any recourse to law will achieve nothing. It is easy to see in hindsight that a legal obligation such as this would result in the anulment of the act or the forcing of the payment. If the previous owner has no money, nothing happens other than the opening of a long and tortuous legal process.

When I sold my land, the notary insisted on a representative from the bank being there so that the loan we had on the house & land was cleared immediately, although (as others have mentioned) the notary explained the actual lien would take longer to clear. This seems fairly common practice here. The bank manager took a signed bonifico form from us to clear the debt and also the bankers drafts for the sum we were receiving so there was no way we could not clear the loan.

It must be very worrying for you. I hope it gets sorted out.

One thing which Adriatica didn't spell out in words of one syllable is that ipoteche legale (charges on the property relating to unpaid state dues, eg. ICI, Tarsu and probably others) remain with the property irrespective of a change of proprietor. (Maybe other owings to a state body on the part of the owner, unrelated to the property, also get liened onto the property?)

I'm rather concerned about the level of these ipoteche in Celanese's example - 85% of the 'declared' cost seems very high, (the 'declared cost' is also a little puzzling given that it is a recent transaction). I hope it all works out satisfactorily.

Could it be that the "declared value" of the property is the "valore catastale" (significantly lower) and not the purchase price?

The last property I bought had ipoteca of virtually 100% of the price (no declared price please note!) thanks to 20 years of unpaid INPS..... and I have heard of ipoteca of more than 100% of the value of the property, so maybe its not unusual - though I thought it was more of a 'southern' problem...