435 Advice on solicitors to use

This is a really tricky issue on which I have commented before on another thread. I am an English property solicitor with an Italian ruin.My advice to you would be to talk to your uncle about buying property generally in the area and ask him to recommend a local lawyer unless you are both happy that there is nothing odd about the property or the sellers and nothing that worries you. There is a whole host of things that can go wrong with Italian property purchases and I would say that things do go wrong there at least as often as here and when they do go wrong it tends to be more serious so you should take care though with your Italian uncle you are off to a much better start than most people.
You will have to employ a translator-no choice there-and I think all purchases wherever they are in Italy have to be carried out in front of a notaio but he will in no way act for you. He represents the state.

Look in the 'Legal' sub-Forum for a thread titled 'legal costs'. This has an interesting discussion on costs and benefits of solicitors.

I agree with what Robert has to say.

This subject has been open to much debate on Forum recently. It is a question that always requires examination of whether all the elements needed to mount a successful house purchase in Italy should include the services of a solicitor.

Proponents of the non-solicitor route, whether individuals or agents, will argue that it is not necessary to seek legal advice. The usual response is that “it isn’t necessary in Italy.” This is complete nonsense. There is no such thing as a standard purchase. Each purchase is so different that the merits of the case need to be carefully considered before committing oneself. Moreover, it is rare for derelict, rural properties to be without legal snags of some sort so it would be unwise to proceed without clearing any uncertainty before hand.

I am assuming, in the first instance, that in the case of the former, the argument against using a solicitor results from personal experience. That may be so, but the fact that their purchase may have gone smoothly is no guarantee that the next one will be successful. In the case of the latter, who normally act on behalf of the seller of the property, this is due to the fact that they want to close the sale as quickly as possible without as little interference as possible.

When buying a house in Italy just remember:

When the seller accepts your offer, this offer becomes legally binding
The preliminary contract is really a final contract and is legally binding
Most agents and Geometra’s tend to produce a standard format contract with very little knowledge of the legal implications.
A standard contract will not contain all of the necessary clauses to protect your own legal position
Just because you have paid a deposit don’t assume that the vendor will not change his or her mind and try to sell the property to someone else.
Check that the property is clear of all potential snags that could lead to problems later on.
Be absolutely clear on what type of deposit (caparra) you are paying. There are two distinct types of deposit (caparra penitenziale and caparra confermatoria), each one having far-reaching consequences in the event of a breach of contract.
Don’t pay large amounts as a deposit without getting bank guarantees from the vendor so that you can get your money back if it all goes pear shaped.
If you have to rescind a contract, examine the possible reasons why beforehand and have this written into the contract.
Notaio’s are public officials. They have to maintain complete impartiality at all times.

There is nothing of the doom and gloom about this. It is really commonsensical. Every purchase carries a risk. It is up to you how best to manage them. If you are unsure and want peace of mind then the recommended practice is to have an independent solicitor carry out all the searches before you even contemplate handing over any money and to have them draw up the preliminary contract for you.

Charles,

I am interesed in your comment about offers being legally binding. We had a verbal agrrement of an offer and we didn't pay any deposit but now the seller is saying either they want more money or they don't want to sell. Can they do that? and even if legally they can't do we actually have any recourse?

This sounds like a bit of gazumping, it seems to exist all over the world. I dont think you will have any recourse, and even if there was, I think the stigma of living in a house which was won over a legal issue could be difficult. I would either neigotiate or walk away, either way you dont win, but that's house buying.

Dear Brendangfc

The difficulty lies in the fact that your proposta d’acquisto is a verbal one.

There is something called the processo di cognizione whereby a hearing could be sought. You would, however, need to have a witness to testify that you did in fact make a verbal offer and that the vendor accepted it. Whilst this process exists in theory, it would, in practice, be difficult to obtain a judgement in your favour, as few judges would consider this as a failure to honour a promise, especially on the basis of a verbal agreement. Frankly, it would be a total waste of time and money.

If your offer was made in writing and assuming the vendor accepted it, then you would have been in a stronger position. But this would still mean battlling it out with no guarantee of getting a satisfactory result. It is only when you start putting conditional clauses in an agreement or conract to protect your legal position that you stand a better chance.

It seems to me that the vendor is hedging his bets. It is difficult to say what you should do but I would play hard to get and try not to show too much interest or disappointment. If you are buying through an estate agent then get them to sort it out. If not, negotiate but try not give in too easily to the vendor's demands. If he is adamant, then say that you agree but only on the condition that...(find something to negotiate) but put this in writing.

In the meantime, do some research to see if you can find another suitable property. You should always have a backup plan in order to avoid disappointment. If your heart is set on this one, well that’s a different matter.

God luck!

We do have a witness to the verbal offer/acceptance as it was made through the agent but I agree that any attempt at legal recourse would be futile.
We are going out in a couple of weeks to hopefully sort it face to face but we also have other viewings already arranged as a back up.

[QUOTE=domfog]
HAS ANYONE GOT A GOOD SUGGESTION WHICH COULD SAVE US UNNECESSARY ANXIETY AND EXPENSE?
SUGGESTIONS PLEASE.[/QUOTE]

I have sent you a private message on this subject, rather than clutter up the thread.

Hallo everyone,

we are using a UK based firm because, if the worse happens, at least we know that our solicitors are regulated by the Law Society and the level of protection would be much higher in this country than in Italy.

Besides, Italian lawyers are NOT required by law to have any Professional Indemnity insurance, unlike their English counterparts who must have Professional Indemnity Insurance up to £1,000.000 per claim {I have done my research with the Law Society lately! :D }

So if anything goes wrong (money missing, money laundering, house sold to two buyers at the same time and so on) you would only have action againt the solicitor's assets (if any, as in the case of action against any other sole trader) and not his (non-existing) insurance.

One more point: you would have to commence proceedings in Italy where a judicial action for the recovery of debt lasts on average 5-6 years, as the Italian judicial system is completely flawed.

All these points have been raised by the Law Society when I asked them about possible details of Italian solicitors in the UK: they have a free leaflet which explains the advantages and disadvantages between instructing English based solicitors specialising in Italian Property law (or Italian/Spanish lawyers who operate in the UK and are therefore regulated by the Law Society) and/or solicitors based in the country where you intend to purchase: this leafleat was created in response to the vast amount of enquiries/complaints that the Law Society receives about solicitors based abroad advising English clients when buying a house.

My husband obtained 3 separate quotes by 3 Italian firms in London for an all inclusive service (from negotiation of the price, initial offer through exchange of contracts) to buy a house in Abruzzo and we have gladly found out that the price which we have been quoted by our chosen firm is even cheaper than the Italian estate agent's fees. And the legal costs can be included in the mortgage as well!

I will send you an email attachment with the Italian Law Firms based in the UK which are regulated by the Law Society and have a department which deals with real estate transactions, but I will need your contact details. So you will need to contact me first by email (laurabrown72@hotmail.co.uk).

If anyone else is interested, you can contact me privately unless it is possible to post these details in this thread without violating the internal rules that "no trade or advertising" is allowable [It would be a list of Italian Law firms though as provided by the Law Society]. Webmaster, any problems with doing that?!

[QUOTE=Laura72]we are using a UK based firm because, if the worse happens, at least we know that our solicitors are regulated by the Law Society and the level of protection would be much higher in this country than in Italy.
[/QUOTE]

Why not just stay in Britain then, if you find Italian law and legal practice to not be to your taste?

Huh? I think you completely misunderstood my point! I was referring to ITALIAN solicitors based in ENGLAND and regulated by THE ENGLISH law Society, although advising on Italian Property/Real Estate Law.

Never implied to dislike Italy, otherwise I would not been moving there!

And by the way, I was only passing on some information which I was given by the Law Society International Department Helpline, in case someone might have been interested in it! This info is also freely available on their website and does not refer specifically to Italian lawyers vs English lawyers but is more general, as it covers all European countries.

[QUOTE=Charles Joseph]I agree with what Robert has to say.

This subject has been open to much debate on Forum recently. It is a question that always requires examination of whether all the elements needed to mount a successful house purchase in Italy should include the services of a solicitor.

Proponents of the non-solicitor route, whether individuals or agents, will argue that it is not necessary to seek legal advice. The usual response is that “it isn’t necessary in Italy.” This is complete nonsense. There is no such thing as a standard purchase. Each purchase is so different that the merits of the case need to be carefully considered before committing oneself. Moreover, it is rare for derelict, rural properties to be without legal snags of some sort so it would be unwise to proceed without clearing any uncertainty before hand.

I am assuming, in the first instance, that in the case of the former, the argument against using a solicitor results from personal experience. That may be so, but the fact that their purchase may have gone smoothly is no guarantee that the next one will be successful. In the case of the latter, who normally act on behalf of the seller of the property, this is due to the fact that they want to close the sale as quickly as possible without as little interference as possible.

When buying a house in Italy just remember:

When the seller accepts your offer, this offer becomes legally binding
The preliminary contract is really a final contract and is legally binding
Most agents and Geometra’s tend to produce a standard format contract with very little knowledge of the legal implications.
A standard contract will not contain all of the necessary clauses to protect your own legal position
Just because you have paid a deposit don’t assume that the vendor will not change his or her mind and try to sell the property to someone else.
Check that the property is clear of all potential snags that could lead to problems later on.
Be absolutely clear on what type of deposit (caparra) you are paying. There are two distinct types of deposit (caparra penitenziale and caparra confermatoria), each one having far-reaching consequences in the event of a breach of contract.
Don’t pay large amounts as a deposit without getting bank guarantees from the vendor so that you can get your money back if it all goes pear shaped.
If you have to rescind a contract, examine the possible reasons why beforehand and have this written into the contract.
Notaio’s are public officials. They have to maintain complete impartiality at all times.

There is nothing of the doom and gloom about this. It is really commonsensical. Every purchase carries a risk. It is up to you how best to manage them. If you are unsure and want peace of mind then the recommended practice is to have an independent solicitor carry out all the searches before you even contemplate handing over any money and to have them draw up the preliminary contract for you.[/QUOTE]
Dearest Charles,
Try to be consistant.
You responded to my posting regarding the listing of the basics hurdles of purchasing in Italy on my thread 'BUYING IN ITALY' as impossible, as 'Every purchase is different' & you cannot give a general listing of what might happen. CAVEAT EMPTOR, or buyer beware, as you so eloquenly slipped into the old Latin.
You now proceed to offer a list to DOMFOG as to the likely
pitfalls he/they could fall into.
Either list Charles, or don't, that is the question, try to be consistant especially when you seem to be setting yourself up as the oracle of all things regarding house buying in Italy.
With Respect
Rob

although I am certainly not one against debate please try to avoid being just a bit too personal

to be precise:

lotaresco - people are allowed to feel insecure, they certainly do not need you to snipe at them. You could make the same point by saying that you think that Italian laywers are fine - or simply by asking why does the other person consider english laywers more reliable. Y

rob - I am sure Charles does not need me to defend him but this is a forum not a court of law, we are allowed to make statements that may be contradictory to each other. Also when you want to make such a personal statement that has nothing to do with the thread itself send a private message to Charles or anyone else.

I am only making these points because other members of the forum now feel intimitated to participate anymore just in case they evoke the anger of the more vocal of our members - so please in general - be polite and stick to the topics while avoiding personal comments.

Thanks,

Ronald

[QUOTE=ronald]I am only making these points because other members of the forum now feel intimitated to participate anymore just in case they evoke the anger of the more vocal of our members - so please in general - be polite and stick to the topics while avoiding personal comments.[/QUOTE]

I didn't think I was being personal, I certainly have not launched a personal attack on anyone here.

Could those posting comments on this forum refrain from descending into what seems to be stereotypical comment on Italy and Italians? There is a worry trend that people are allowed to make comments entirely disrespectful to the nation that they are claiming to be interested in, and to the people who will eventually be their neighbours and no comment is made on this at all by the moderators.

Italy is not some backward country where the people are thieves, muggers, murderers, racists, dangerous drivers, professionally untrustworthy nor any of the other things they have been painted as being in posts to this forum. Italy is my home and my friends and work colleagues are Italians. Perhaps you can understand why I'm feeling offended by some of the things said here? I apologise if this has come across in my posts, but I believe that what I have said has been said without malice, in the face of some terribly disrespectful comment on a nation and a people who do not deserve the comments made.

Dearest Ronald,
Sorry, but you can't have one without the other.
With respect, you seem to need a lesson on free speech here old son.
Once you have allowed anyone to post on your forum, you can't just jump in to protect him/her, just because you do not like the response someone has given to that post.
This is not chucklevision, this is an international website, so act like grown-ups or drop the site.
You can't have it both ways Ronnie, or does the dropping of the DAVE thread answer my question.
With Respect
Rob

[QUOTE=Rob]This is not chucklevision, this is an international website, so act like grown-ups or drop the site.[/QUOTE]

Rob I'm not trying to pick an argument with you either, but you need to appreciate the difference between a web forum and a newsgroup. Newsgroups are owned by the people who use them, if they are "owned" by anyone at all. Hence newsgroups are places where free speech is practiced.

Web forums are owned by their publisher, be that a company and individual and in this case the publishers of a magazine. As such the owner of a web forum is perfectly at liberty to set rules for the use of their forum and to edit/remove material they disagree with or find offensive.

Italy magazine has been remarkably generous in its policy and I don’t want to see that come back and bite them. If the moderators disagree with anything said, they have the right to chastise the poster, to remove their posting or their posting privileges. It is their right, and none of us have the right to impose our view of how this forum should be run on them.

I support the way this forum is run, I hope that everyone else using these forums does as well and I would hate for even a single individual to feel inhibited about posting here because of the tone of posts or a feeling that individuals were being attacked.

let's hear it for Ronald
I completely agree with his comments about some of the postings.This Forum used to be a place where people could exchange information, worries,recipes,stories etc without fear of being ridiculed or rubbished. Messages were always interesting,wide ranging and respectful.Sadly that is no longer the case. I for one would be quite happy to see certain people banned from the Forum which is something Ronald is fully entitled to do.

"Originally Posted by Laura72
we are using a UK based firm because, if the worse happens, at least we know that our solicitors are regulated by the Law Society and the level of protection would be much higher in this country than in Italy.

Why not just stay in Britain then, if you find Italian law and legal practice to not be to your taste?"

I wouldn't want to pre-empt any response that Laura might want to make, but in light of your later comments I thought I would explain why we used a UK based solicitor on our house purchase and it wasn't because we had prejudices against Italian law and/or legal practice.

We dealt with an Italian estate agent who did not generally favour the use of lawyers at all. This was mostly, I believe, because he was highly experienced himself and wanted the freedom to push the sales process along quickly without the intervention from third parties. We didn't have any experience of buying in Italy (or anywhere else apart from Britain, for that matter) and found the concept of one mediator acting in the best interests of both parties to be an uneasy concept. We would have used a lawyer in Italy if we had known one, but the one added bit of "insurance" we had by using a UK based lawyer was that if anything went wrong with the sale as a result of the lawyer's negligence we would have a right to sue here in the UK, in a language and according to a set of legal rules that we truly understand.

If a house sale/purchase goes wrong in any country it's a nightmare, but if I had to choose I'd rather not compound the legal problem with a linguistic one. That's not in any way to denigrate Italians. If anything it denigrates our language skills.

Thank you Lucciana

I was a bit afraid, as a new user, that I had caused a major row amongst regular forumers by simply posting the recommendations of the Law Society. I then found out that the user who made that nasty comment is indeed related to an Italian solicitors, so he has a vested interest.

I agree 100% with Lucciana's comments: instructing an English based Italian lawyer gives more reassurances, it's cheaper and the buyer feels that he's properly represented by a party who has your interest at stake.

I will gladly publish for the benefit of future users a list of Italian law firms in the UK which are currently registered and regulated by the Law Society, with the permission of the moderators. Alternatively, anyone can contact me privately and I will pass them these details.

laura thanks for the offer to publish the list but it would be wiser not to.

anyone interested can contact laura through a private message and ask for it.

thanks,

ronald

[QUOTE=Licciana]If a house sale/purchase goes wrong in any country it's a nightmare, but if I had to choose I'd rather not compound the legal problem with a linguistic one. That's not in any way to denigrate Italians. If anything it denigrates our language skills.[/QUOTE]

Hmm, well, my experience of Italian lawyers, when I visit law conferences in Italy is that they are at least as professional as their UK counterparts, and many lawyers in Italy speak perfectly good English so the commuication issue is a non-issue. You can always find someone who will be a good match to what you want.

When choosing a lawyer in the UK to provide legal services in Italy, one seems to be running several risks. Firstly it's always a good idea to use a lawyer who knows the local area, for example in many regions there is a strong local dialect. A lawyer who cannot understand the dialect and who does not know some of the pitfalls of local legal practice is inherently at a disadvantage.

Secondly a UK based lawyer is goign to be slower and will incur costs that a local practitioner will not. Fine if you're willing to pay extra for that "peace of mind" but it's not a state of mind that has firm foundations. Spin it around, would you trust an Italian legal firm to do conveyancing in the UK?

OK, if you have a UK solicitor you know well and trust, I can see the point. But an english pig in a poke is as much in a poke as an Italian one.

[QUOTE=lotaresco]...many lawyers in Italy speak perfectly good English so the commuication issue is a non-issue. You can always find someone who will be a good match to what you want.[/QUOTE]

Great if you know how to find them. We didn't.

[QUOTE=Laura72] I then found out that the user who made that nasty comment is indeed related to an Italian solicitors, so he has a vested interest.[/QUOTE]

I'm sorry, I didn't see the comment as nasty. Maybe you got me on a day when I was exasperatd by a strongly anti-Italian thread in another part of this forum, if so, and especially since your feelings were hurt, I apologise.

My feelings are also wounded somewhat by your comment above. I have no vested interest in this at all. My legal dealings in Italy are in criminal law and I don't think you would want to be in need of my services on a professional basis. It would mean that you would be looking at the possibility of a lengthy jail sentence in an Italian prison for extremely serious crimes. As it says in my sig, I'm a forensic investigator, nothing to do with civil law or with house conveyancing.

My friend, and he's no more than that, does offer legal assistance to English people and he's a trustworthy, affable barrister (avvocato) with a deep love of England and English people. I have never taken a penny from him in payment and here's no financial tie between us at all, just the professional respect of two people interested in the law.

What I found difficult in your posting was the implication that Italian lawyers are less professional than their English counterpart, more likely to foul up a transaction and that they do not carry indemity for misconduct, and a clincher was to state "the Italian judicial system is completely flawed."

Having worked within the Italian judicial system, I simply can't agree with you. The Italian judicial system is different from the English system but it's not inherently flawed, and I've seen examining magistrates in Italy cut short cases and instruct both sides to sort it out ASAP, in a thoroughly just and equable manner. I've also seen a deep regard for both process and for human rights which is becoming less and less evident in english jurisprudence (Scots law is thankfully closer to Italian and hence less flawed than the English legal system).

And finally, and the real point of my comment. If you move to Italy you will be subject to Italian law and a good part of your affairs will have to be conducted under Italian law and if necessary in front of an Italian judge. Surely if you seriously believe Italian justice to be inherently flawed you should not be thinking of living in the country? It's going to be very hard to avoid Italian law in Italy. Even something as simple as a "fender bender" on the streets will see you having to cope with the Carabinieri / Polizia Stradale / Vigili and possibly an Italian lawyer to recover your costs from the other party. Buy a house and even if you dodge as much as possible of the Italian legal system at purchase, you will be subject to Italian inheritance law and UK inheritance taxation.

I can't repeat it often enough, Italy is a wonderful country, and the Italian people are the most honest and trustworthy people I have known. I've warmed to the Italian concept that we do business locally and keep our business in the local community because that way, we remain strong and independent as a nation, and put simply it's better to assimilate than to wander in as the English foreigner using foreign lawyers, foreign architect, foreign builders...

[QUOTE=Licciana]Great if you know how to find them. We didn't.[/QUOTE]

I didn't when we started, I found one within a month. Which must be about the time it takes to find a lawyer you can trust in the UK. In my case I asked in a web forum, like this one for recommendations for a lawyer who could speak English or German and got an English speaking lawyer, who had a business partner who could speak German and a wife who speaks fluent French. Pretty much all bases covered between us. Maybe I'll regret "going native" at some point but it's all been good up to now.

[QUOTE=lotaresco] I can't repeat it often enough, Italy is a wonderful country, and the Italian people are the most honest and trustworthy people I have known. I've warmed to the Italian concept that we do business locally and keep our business in the local community because that way, we remain strong and independent as a nation, and put simply it's better to assimilate than to wander in as the English foreigner using foreign lawyers, foreign architect, foreign builders...[/QUOTE]

I absolutely agree with you. When we were looking to buy a house there (BTW, in our case it's a holiday house only) we were given dire warnings about doing business in Italy from some people (most of whom, I might add, were Italians living in the UK) and we have not encountered any problems at all. Quite the contrary, everything has been and is being done in the most professional way - all by Italians. Actually, even our lawyer was Italian, just based in the UK.

I have to say that I have yet to read a "Strongly anti-italian thread" on this Forum. it would seem rather a pointless exercise. It would be a shame if everyone felt that they could not comment on aspects of Italian life which bemuse/surprise/shock, as well as on those things which make us all huge fans of the country.

I'm strongly of the beleif that if you choose to live in another country then you have to adapt to their way of doing things. However, i don't think that means you have to leave all your critical faculties at the border. There are many things about Italy that I love. But it would be patronising of me to pretend that everything is perfect.