573 new member

[QUOTE=notaio]Hi ,
I'm an italian notary and i've red on the forum that uk people has a lot of misunderstanding abaout italian civil and tax laws.
There are also a lot of wrong informations.
It would be the same, I guess, if I liked to buy an house in London!

I hope to give you some adivices and good news.

Ciao[/QUOTE]
Welcome to the forum. sure your input will be useful and accurate.
Thankyou for your advice re Wills Italian/English. Have duly noted as we are due to update our wills.

Would you mind going to the thread Declaring second home in Italy to Italian tax authorities in Property Sales and rental advice. I am really really confused!

Vi occupereste di andare al filetto che dichiara la seconda sede in Italia alle amministrazioni fiscali italiane nelle vendite della proprietà e nel consiglio locativo. Sono realmente realmente confuso!

Does my translation make sense?

Grazie

[QUOTE=trullomartinafranca]Would you mind going to the thread Declaring second home in Italy to Italian tax authorities in Property Sales and rental advice. I am really really confused!

Vi occupereste di andare al filetto che dichiara la seconda sede in Italia alle amministrazioni fiscali italiane nelle vendite della proprietà e nel consiglio locativo. Sono realmente realmente confuso!

Does my translation make sense?

Grazie[/QUOTE]

If I understud your answer, you need to declare your home in Italy when buy it at the "comune" because you have to pay I.C.I. (Imposta Comunale sugli Immobili) that is a municipal tax.
You have no tax when you sell the house, unless you sell it within 5 years, with a capital gain
Your traslation is quite good except from "filetto" that in italian is a good piece of meat, you can make it grilled or in other ways!

Sorry, still do not understand. If you go to the forum (thread) stated in my previous post, you may understand better but have pasted the main points of the confusion below.

"Everyone needs to pay ICI and TARSU (rubbish tax)".

"There is also a tax to pay upon the notional rental value of your house, even if you do not actually rent it out which is based on the official rendita catastrale (rateable value). It is normally small."

"We got a commercialista (accountant) in the end. He advised us that if the rendita catastale of your house is less than 3000 euro (ours is about 180 euro), you are not legally obliged to fill in a tax return".

So is there three types of payments to be made? ICI, Tarsu and a tax on notional rental value if above 3000 euro?

Still confused, I am.

Grazie

Yes,
you have 3 taxes that must be paied each year:

- ICI - based on the "valore catastale", it's paied to the "comune" where your house is based and its amount is fixed by the city council, normally
5-6/000 of the "valore catastale", lower if there is a "prima casa", that is the house where you live and it's paied in 2 instalments: june and december

- TARSU - or rubbish tax, you have to pay it not becouse you own a house but becouse you use it.
also this tax's fixed by the city conucil a can vary from different comuni.

- IRPEF (national rental value) - there is a no tax area under €. 3.000,00 of valore catastale.
Of course, if you rent the house, this increase your taxable income.

ciao

[QUOTE=will]Having a Notaio as a member is a fantastic break for the forum, welcome !
I'm going to seize opportunity to ask something that i've always wondered the answer to. Namely the issue of declared selling prices, clearly in Italy (Spain also) its very widespread that prices of sale are underdeclared for obvious reasons, often using the cadastral value as a guide, as this is such a widespread practice, how do you see it from a Notaios point of view (punta di vista). I guess in the end its not your job to question the figures that are put in front of you even though you will know that they are not the actual ones. In short do you see it as : state endorsed fraud? a cultural quirk of the system or that you dont know what I'm talking about![/QUOTE]

The taxation of the real estate sales is hypocritical !
The law says the the tax (registrazione) must be payed on the declared price.
The tax office can verify the price and, if finds that the price in higher can recover the tax you didn't pay.
BUT, if you declared a price compatible with the valore catastale, the tax office MUST accept your price as real and is not allowed to verify it.
This is good for the tax payer, but has no legal sense, because in this way most of the public contracts have a simulated price.
The system works because the post contract litigation is very low, since all the problems are normally solved before the notary, that give a good guarantee to the buyer about the effective proprety of the seller and the absence of mortgages etc and so the declared price becames not so important, since it very unlikely that the parties will litigate.
It could be dangerous when the seller is a person that could have debts, like an entrepreneur.
In thise case, the buyer is at risk, because, in case of failure, if the price of the sale is too low, the creditors can presume that you have taken advance of the seller's problems, buyng at a price in froud of the creditors.
As notaio I always try to give the best advice I can, but is not easy persuade people to pay more taxes.

Thank you, I now understand, well better than I did

Grazie

[QUOTE=notaio]- IRPEF (national rental value) - there is a no tax area under €. 3.000,00 of valore catastale.
Of course, if you rent the house, this increase your taxable income.
[/QUOTE]
So if your house has a catastale value of 3000 or above, you must pay this but for the average person who does not own a huge castle (my catastale value is 560 so 3000 must be a great location and a nice piece of property) they do not need to worry about this?

Another thing, I notice that we are talking apples and oranges. While they are all (ICI, garbage and rental value) taxes, they are different in the fact that the ICI and garbage are taxes due by themselves. You pay with a bolletino postale and they are based on your property. This other is a tax due when you file Italian Income taxes. It is not the whole thing but just one section of the Modello Unico Persone Fisiche [url]http://www.agenziaentrate.it/modulistica/dichiarazione/2005/unico_pf/index.htm[/url] . It is not seperate. Many people who are expats do not file Italian Income Tax unless they are getting paid in Italy (job or a business) even though they "should".

You know, by doing a search on this I came up with lots of different pages and no one seems to understand it IMO since they are all different. For example [url]http://www.properties-in-europe.com/info_italy_tax.htm[/url] says this "Notional Income Tax - There is also a tax to pay upon the notional rental value of your house, even if you do not actually rent it out. This is based on the official rendita catastrale (rateable value). It is normally small." Personally, the way this is phrased makes me think they are talking about ICI since they ahve it as a seperate tax.

Personally I think we are confusing matters. I will be talking with Confcommercio today and will get an accurate explanation of this.

don't worry !

If you are a "medium" foreign citizen, owning a real estate in Italy and unless you have a huge castle or several houses, you'll never pay National Income Tax in Italy, so erase this problem from your mind.
To verify the magical value of €. 3.000 have a look to your notarial deed where the rendita catastale is indicated

It's different, of course if you have other revenues in Italy or if you're using your house as a commercial property, like bed and breakfast, renting etc.
In this way you must pay taxes based on the global incomes.

ICI and TARSU are different.
They are local taxes and must be always payed.
The amount of the tax is decided by each comune and for ICI is based on valore catstale rivalutato, i.e.:
rendita catastale €. 400,00
valore catastale rivalutato 200 x 105 = €. 42.000,00
ICI (usually a medium of 6/000) = €. 252,00
There are "sales" if the house in inhabitable or if it's your permanent house
Consider that the ICI value can vary each year.
Most comuni have web sites where you can be informed and some comuni (like mine) send at your address the bollettino postale (post form) already filled with rendita catastale rivalutata.

[QUOTE=notaio]Hi ,
I'm an italian notary and i've red on the forum that uk people has a lot of misunderstanding abaout italian civil and tax laws.
There are also a lot of wrong informations.
It would be the same, I guess, if I liked to buy an house in London!

I hope to give you some adivices and good news.

Ciao[/QUOTE]

Gentile Notaio.

Benvenuto a Forum! Collaborando sia con uno Studio Legale, sia con uno Studio Notarile entrambi con esperinenza consolidata nelle Marche, vorremmo sapere nei dettagli, a quali imprecisioni giuridiche Lei si riferisce.

Questo al fine di dare al presente forum una valenza tecnica e non solo ludica. Lei capirà i motivi della ns risposta decisa, ma dodbiamo rendere conto del ns ruolo, che ci impone professionalità e responsabilità delle risposte al forum.

Pertanto, Le chiedo, qualora non voglia esibire il suo nome e recapito professionale direttamente nel forum, di scriverci in separata sede onde vagliare i motivi delle sue doglianze che non comportano così come effettuate, nessuna miglioria al nostro servizio.

Fiducioso di una sua cortese riposta e disposto ad un incontro nel suo Studio anche a fini collaborativi, distintamente La saluto.

Notaio…

I would agree with you that Italian civil and fiscal laws can be complex and confusing, especially to those who are unfamiliar with the system. The main problem is that Italians operate in a different environment to one we are accustomed to back home and although some of the formalities may appear to be similar, the legal system in Italy is really very different to ours.

Perhaps you would, as a practicing Notaio, care to offer a more complete explanation on the imposte dirette e indirette sulla compravendita di immobili e terreni. In particular it would be interesting to hear your views about the decreto legge n.7 dated 31/01/05 and its implications on the following:

Imposta di registro
Imposta catsatale
Imposta ipotecaria
Imposta di bollo
Diritti per domanda di voltura
Denunce di successione

I think we could all benefit from your views.

Would also be nice if you could offer yur views on TOSAP (Tassa Occupazione Spazi e Aree Pubbliche.

[QUOTE=Charles Joseph]Notaio…

I would agree with you that Italian civil and fiscal laws can be complex and confusing, especially to those who are unfamiliar with the system. The main problem is that Italians operate in a different environment to one we are accustomed to back home and although some of the formalities may appear to be similar, the legal system in Italy is really very different to ours.

Perhaps you would, as a practicing Notaio, care to offer a more complete explanation on the imposte dirette e indirette sulla compravendita di immobili e terreni. In particular it would be interesting to hear your views about the decreto legge n.7 dated 31/01/05 and its implications on the following:

Imposta di registro
Imposta catsatale
Imposta ipotecaria
Imposta di bollo
Diritti per domanda di voltura
Denunce di successione

I think we could all benefit from your views.

Would also be nice if you could offer yur views on TOSAP (Tassa Occupazione Spazi e Aree Pubbliche.[/QUOTE]

Decreto Legge n. 7 is a law that has increased some of the taxes related to real estates sales. Particularly the minumum amount of tassa registro, tassa catastale, tassa ipotecaria and bollo.

Here is an example af the cost of a standard purchase of an house declaring a price of €. 100.000,00, with the new taxes:
Tassa Registro: €. 7.000,00 (7%)
Tassa Ipotecaria €. 2.000,00 (2%)
Tassa catastale €. 1.000,00 (1%)
Bolli €. 240,00
dirtti per trascrizione €. 40,00
certificati €. 40,00

If "prima casa", that is when you buy an house in the town where you are - or you are going to be - permanent resident, or where you work,
tassa registro is reduced to 3%, and tassa ipotecaria and catastale are payed in their minumum of €. 168,00 each

If you're buyng from an entrepeneur, you pay VAT to the the vendor.
To the notary you give tassa registro, ipotecaria and catastale in their minumum of €. 168 each, plus the other costs above mentioned.

No taxes when you sell, unless you sell within 5 years with a capital gain.

Notary's fee (for €. 100.000,00 declared price) is about 950/1250 according to the complexity of the contract. It's the fee here in Marche, it could be different in other part of Italy.

Thank you Notaio...very helpful.

What about TOSAP (Tassa Occupazione Spazi e Aree Pubbliche)? How does this work?

Another hot topic is that of fees (tariffe notarili). I always get the impression that the way this is handled in Italy is eminently curious and cabalistic to say the least. I see you have given an indication of fees in the Marche based on a 100.000 euro purchase. But is there a national tariff for people to refer to?

I would be grateful if you could also shed some light on this subject.

[QUOTE=Charles Joseph]Thank you Notaio...very helpful.

What about TOSAP (Tassa Occupazione Spazi e Aree Pubbliche)? How does this work?

Another hot topic is that of fees (tariffe notarili). I always get the impression that the way this is handled in Italy is eminently curious and cabalistic to say the least. I see you have given an indication of fees in the Marche based on a 100.000 euro purchase. But is there a national tariff for people to refer to?

I would be grateful if you could also shed some light on this subject.[/QUOTE]

1 - TOSAP is a local tax that you have to pay when you use or occupy a public area.
Its amount is decided by city council (like ICI) and depends on how much public area you're using.

2 - notary's fee.
There is a national tariff or, better, there is a law that indicted the minimum fee and the criterions that must be followed to apply the tariff to the concrete case. Each notary district (there're several) decide the district tariff considering the economic reality of the zone.
So the fee in Milan or Rome is higher then in Macerata, Urbino, Brindisi or other small districts in south or central Italy, but we're talking of a difference of max €. 500/600.

3- what do a notaio do ?

Reading questions and comments on the forum, is evident that most of you has no idea of what a notaio is, considering him as a sort of tax collector.
That's because public notaries in UK and other common law countries have poor significance and essentially their job is just to certify the signature, with no more responsibilities.
Notaio's job in civil law countries, like Italy, France, Spain, Germany, Austria, Holland etc. is totally different.
A notary is a public officer AND a professional lawyer, with a p.h.d. in law, highly competent in civil and commercial affairs, appointed notary after a very selective examination.
He is absolutely impartial, there can't be a notary of the vendor or a notary of the buyer, he must take care of both parties of the contract and guarantee the regularity and validity of the contract.
In a real estate purchase he, among the others duties:
- MUST verify that the one who claims to be the owner of the property that's going to be sold, is really the sole owner;
- MUST verify that the good has no mortgages or similar "surprises"
- MUST verify if there are problems with building permissions
- MUST verify cadastrial data
- MUST suggest the right and cheapest taxation possible
- MUST draft the contract according to the wills of the parties and the law
- MUST read and explain to you the contract (it could seem silly, but it's important, because you have the right to understand what you are going to sign)
- MUST look after the registration of the deed in the public land register
- MUST collect taxes for the contract and pay them
Of all those activities he's personally liable for and if something goes wrong (i.e. hidden mortgages, mistaken in cadastrial identification etc.) you have the right to take legal action against him.
The contract drafted by a notary is a full evidence - doesn't need to be proved in a court - of the declarations made by the parties before him (i.e receipt) and of the other facts he certifies as happened before him.

Given the previous explanation, is a solicitor necessary? We haven't used one.

[QUOTE=neal hampson]Given the previous explanation, is a solicitor necessary? We haven't used one.[/QUOTE]

We didn't use one either.

[QUOTE=neal hampson]Given the previous explanation, is a solicitor necessary? We haven't used one.[/QUOTE]

No, not necessary but may be useful. You may recall I got shouted down when I stated as much before, no doubt it will happen again. There are many solicitors who are happy to take your money and who are happy to take the fees charged by a notaio and to convert them on the basis of one Euro to a pound and to add that to your bill.

A solicitor/lawyer can be useful for advice that you won't get from a notaio, such as the rental of your land, potential inheritance problems, or in our case a particularly difficult series of transactions when we took over the contracts of workers who had laboured on our land for years.

You [B]may[/B] need the sevices of a lawyer but it's not automatically necessary.

Thank you Notaio

Just for the record…most degrees that are awarded in Italy come with the title of Dottore. You can be a Dottore in any subject. For example, you can be a Dottore in Political Sciences, in Information Technology and in Economics. Even an architect is known as Dott. Architetto, whilst an engineer is Dott. Ingeniere.

The Italian Dottore is not the same as a Phd.

My understanding is that in Italy someone who has a law degree is referred as a Dottore in Giurisprudenza. This does not however, automatically entitle the holder to practice as a lawyer. It is like having an LLB or an LLM in the UK. To qualify as a Solicitor or a Barrister you have to complete further stages of training.

It is more or less the same in Italy. To qualify as a full Avvocato (as distinct from obtaining the patrocinio which allows you to handle certain cases) two more years of training will be required. At the end of year two the candidate has to take the state exam in order to qualify. To become a Notaio, a different training route is taken.

Both are unquestionably, highly trained individuals. But this training is in specialist fields. It is a little like comparing a heart surgeon with an orthopaedic surgeon. Both are medical doctors, but each one is an expert in his/her chosen field. You can train to become an Avvocato and then a Notaio (some have qualified as both) but you can only practice one profession. In his/her role as public official, the Notaio serves the state, whereas the Avvocato serves his/her clients.

Alan, Neil…I assume that your own purchases went through smoothly. But this doesn’t mean to say that every transaction goes through without problems.

I support Steve’s comments in that you don’t always need a solicitor. I also agree that a Notaio is not always necessarily better equipped or qualified to offer specific advice about your own legal position or on how best to proceed in a particular situation. In having dealt with a number of Notaios during the course of my work, I have discovered this to be the rule rather than the exception. It is also very rare to find a Notaio that can speak other languages with a certain degree of fluency, thereby enabling them to explain the law to non-Italians in a most precise, unequivocal and concise manner.

You also have to remember that there is no such thing as standard house purchase. Each case is so different that it is virtually impossible to predict the outcome. There are times when you will need the support of an Avvocato, especially when you consider that a fair number of proposte d’acquisto, contratti preliminari and other important contractual documents with far reaching legal consequences have been drawn up by people with a very little understanding of the main legal provisions pertaining to Italian property law.

Moreover, contractual documents that have been poorly translated have the propensity of being legally muddled and can therefore, mislead or even limit the buyer. In these situations a public official who has to maintain complete impartiality is not really the best person to turn to.

[QUOTE=Charles Joseph]Thank you Notaio

Just for the record…most degrees that are awarded in Italy come with the title of Dottore. You can be a Dottore in any subject. For example, you can be a Dottore in Political Sciences, in Information Technology and in Economics. Even an architect is known as Dott. Architetto, whilst an engineer is Dott. Ingeniere.

The Italian Dottore is not the same as a Phd.

My understanding is that in Italy someone who has a law degree is referred as a Dottore in Giurisprudenza. This does not however, automatically entitle the holder to practice as a lawyer. It is like having an LLB or an LLM in the UK. To qualify as a Solicitor or a Barrister you have to complete further stages of training.

It is more or less the same in Italy. To qualify as a full Avvocato (as distinct from obtaining the patrocinio which allows you to handle certain cases) two more years of training will be required. At the end of year two the candidate has to take the state exam in order to qualify. To become a Notaio, a different training route is taken.

Both are unquestionably, highly trained individuals. But this training is in specialist fields. It is a little like comparing a heart surgeon with an orthopaedic surgeon. Both are medical doctors, but each one is an expert in his/her chosen field. You can train to become an Avvocato and then a Notaio (some have qualified as both) but you can only practice one profession. In his/her role as public official, the Notaio serves the state, whereas the Avvocato serves his/her clients.

Alan, Neil…I assume that your own purchases went through smoothly. But this doesn’t mean to say that every transaction goes through without problems.

I support Steve’s comments in that you don’t always need a solicitor. I also agree that a Notaio is not always necessarily better equipped or qualified to offer specific advice about your own legal position or on how best to proceed in a particular situation. In having dealt with a number of Notaios during the course of my work, I have discovered this to be the rule rather than the exception. It is also very rare to find a Notaio that can speak other languages with a certain degree of fluency, thereby enabling them to explain the law to non-Italians in a most precise, unequivocal and concise manner.

You also have to remember that there is no such thing as standard house purchase. Each case is so different that it is virtually impossible to predict the outcome. There are times when you will need the support of an Avvocato, especially when you consider that a fair number of proposte d’acquisto, contratti preliminari and other important contractual documents with far reaching legal consequences have been drawn up by people with a very little understanding of the main legal provisions pertaining to Italian property law.

Moreovertwo more years of training, contractual documents that have been poorly translated have the propensity of being legally muddled and can therefore, mislead or even limit the buyer. In these situations a public official who has to maintain complete impartiality is not really the best person to turn to.[/QUOTE]

Just for the record.
To became notaio you need a degree you get after 5 years of university, so called laurea specialistica, that is similar, I guess, to a phd, but I could be wrong. After the laurea you need two more years of training and then you have to pass a national examination, very selective.
I agree with the example of the doctors, I too had it in my mind.
A notaio is highly specialized lawyer in real estate transactions, just as example I draft dayly 3/4 contracts related to real estate.
So a notaio is not smarter then a avvocato (or solicitor) but he's surely more experienced.
A legal advice is obviously necessary.
Nobody should sign a contract without understunding what he's signing.
I think that a solicitor, for a uk citizen buying an house in Italy, could be necessary to help him minding the gap between the 2 different systems of common law and civil law, but I don't think he's so necessary for drafting the contract, if that one is prepared by a notary, unelss you wont a surplus guarantee, and in this way you must accept to pay twice.
In the italian experience compromesso (or preliminary contract) is seldom drafted by a lawyer, and, in the same way, a lawyer rarely assists one of the parties when the final contract (atto pubblico) is signed.
The reason lies in the motives I explained before: the presence of the notary gives a good guarantee to both parties. Notaio is felt as lawyer, may be expensive, but trust-worthy.
I agree with you that most of notaries, as many italians, don't speak good english, but in this case you need a translator, not an avvocato.
A lawyer is surely indispensable if arise troubles between the parties that could lead to a lawsuit or if the vendor try to push the buyer to accept noose clauses (this is a translation of idiomatic italian, has it sense in english?).

I would like to ask a question of our "notaio".

I am an Englishman who has been living in Italy for a long time.
I have discussed the question of whether to make an English or an Italian will with both my UK solicitor, who does not understand Italian law, and my Italian notaio, who does not understand English law!

As a foreigner living in Italy, my notaio tells me that I can choose whether to make an Italian will, and thus be subject to, for example, Italian inheritance law (50% to wife, 50% divided between children unless otherwise specified in the will), or an English will, where I can specify whatever I want in terms of who I leave my property to. The notaio tells me that Italian law will defer to the law of the foreigner. He added that to facilitate any real estate questions in Italy, that I should however register the UK will in some way in Italy.

I discussed this with my UK solicitor and he said that he had no problem making a UK will for me to dispose of any property in the UK, but was not sure what the notaio meant concerning registering the UK will in Italy. He was uncertain about specifying any provisions for property disposal in Italy in a UK will.

I went back to my notaio and he came up with the following suggestion. Why don't I make a UK will in two parts: one specifying inheritance of UK possessions (and this would not be visible at all in Italy), and a second part stating that concerning any transfer of Italian property, "the following should apply". Then specify (using English law) what I want to do with my Italian property. This second part should then be translated and registered with the notaio in Italy as a valid will in Italy, but under UK law.

So when I die, my executor will first execute the UK will, then come to the Italian part and then execute that part in Italy. The Italian authorities will know nothing of the provisions of the UK part of the will, but the UK authorities will have full view of everything, even though the Italian state will manage the Italian part.

Can I ask the "notaio" if this makes legal sense and exactly what has to be done in Italy and in England to ensure validity?

grazie mille!
John Lomas

hi
we are jsut about to go to the luningiana area to look and hopefully buy a house,,but is it true that you have to leave a deposit,,and so you get it back? also do you have any other good snippets of info for us? would be really greatful,,
thanks
joany

[QUOTE=notaio]3- what do a notaio do ?

Reading questions and comments on the forum, is evident that most of you has no idea of what a notaio is, considering him as a sort of tax collector.
That's because public notaries in UK and other common law countries have poor significance and essentially their job is just to certify the signature, with no more responsibilities.
Notaio's job in civil law countries, like Italy, France, Spain, Germany, Austria, Holland etc. is totally different.
A notary is a public officer AND a professional lawyer, with a p.h.d. in law, highly competent in civil and commercial affairs, appointed notary after a very selective examination.
He is absolutely impartial, there can't be a notary of the vendor or a notary of the buyer, he must take care of both parties of the contract and guarantee the regularity and validity of the contract.
In a real estate purchase he, among the others duties:
- MUST verify that the one who claims to be the owner of the property that's going to be sold, is really the sole owner;
- MUST verify that the good has no mortgages or similar "surprises"
- MUST verify if there are problems with building permissions
- MUST verify cadastrial data
- MUST suggest the right and cheapest taxation possible
- MUST draft the contract according to the wills of the parties and the law
- MUST read and explain to you the contract (it could seem silly, but it's important, because you have the right to understand what you are going to sign)
- MUST look after the registration of the deed in the public land register
- MUST collect taxes for the contract and pay them
Of all those activities he's personally liable for and if something goes wrong (i.e. hidden mortgages, mistaken in cadastrial identification etc.) you have the right to take legal action against him.
The contract drafted by a notary is a full evidence - doesn't need to be proved in a court - of the declarations made by the parties before him (i.e receipt) and of the other facts he certifies as happened before him.[/QUOTE]

Does this happen for both the private deed and the Public deed or can you explain the difference as I read that the Public Deed protects the purchaser more than the private deed.

First of all: I have no idea of the english inheritance law.
Considering this point, here are some considerations.

1 - according to italian law, the inheritance of a uk citizen is submitted to uk law
2 - a english will is valid valid in Italy even if it is drafted in the english way.
That's because, under italian law:
"a testament is valid, regarding its form, if it is considerated valid by the law of the Country where it has been signed, or by the law of the Country of wich the person who signed the will was citizen or by the law of the Country where he was resident" (sorry for my translation but I've not at hand a vocabulary
3 - I see no problem having a will saying:
"I leave my house in London to my son Mark and my house in Florence to my son Tony" Italian authorities don't care of the english part of the will
4 - there could only be some practical, but not legal, problems having only one will signed in England and in english, because for your italian properties you need to introduce your will in the italian legal system, so you (better your heirs) need translations, made in the legal way and need to deposit a copy the will to a notary.
5 - the solution of 2 wills, one in italy for italian properties and another in England is surely more pragmatic.
But you must be careful.
In Italy, but in England too I guess, with a will you choose your heirs,that is, the one who has the right to have a part of your properties and the duty of payng your debts.
So the two wills need to be coordinated, otherwise there could be contrasts in the individuation of your heirs.
If I write in the english will that my heir is Mark and in my italian will, drafted later, that my heir is Tony, he could pretend that he's the only heir, even for the english part.
Or, if there are debts, one of the heir could try to wash his hands, sayng he's not responsable for italian debt or vice versa
So your italian will should confirm, first of all, the english will and specify that it regards only italian properties and specify who are your heirs.

BTW, in Italy is not very common to make a will, many inheritance are legittime, that is when the inheritance follows only the law

This answers the question about wills in another thread but what about the public and private deeds when buying a property?:)

[QUOTE=DaveJ]This answers the question about wills in another thread but what about the public and private deeds when buying a property?:)[/QUOTE]

My answer was to Jhon Lomas' question about wills ;)

a private deed is a valid contract between the parties who signed it, that are binded to respect it, but it has no efectiveness with a third party.

I give you an example:
you can buy an house with a private deed, and if the contract has been proprerly drafted, with no nullities, you're the new owner in front of the old one, BUT you can't register your ownership in the public land register and IF the old owner sells the house to a third person with a public deed, this one is the proprietor in front of the law.
You can only summons the old seller and get compensation of tha damages.
A private deed can be notarized (i can't find a better word) that is when the notary authenticates the signatures.
In this way the deed can be registered in public reigsters by the notary and you can get a full property even in front of all.
I remind you that even when the notary authenticates the private deed, he verifies all the things I talked before, so the buyer has always a full guarantee.
The price of an authenticated deed is quite the same of a public deed, because of all the verifies and activities the notary anyway does.
80% of all real estates purchases are drafted public

A compromesso (or preliminary contract) is usually a private deed, often drafted by a notary, but also by lawyers, or even sales agencies.
It's valid but it doest'n transfer the property. It only bind the seller to transfer it and the buyer to pay the price. The property will be trasferred only with the public deed.
It is useful to sign a preliminary contract because you don't have to pay immediately the full price and you can bind the purchase, but it's better to give not a huge deposit, particularly if it will pass a lot of time between the preliminary and the public contract.

Hope I've calrified a bit.

Quote: “The compromesso (or preliminary contract) is usually a private deed, often drafted by a notary, but also by lawyers, or even sales agencies”.

My understanding is that the contratto preliminare di compravendita is considered, as per the provisions stipulated in the Codice Civile, to be a contract to all intents and purposes. It is enforceable by law. Moreover, since it legally binds vendor and buyer, it has far reaching legal consequences for both parties.

Yet some real estate agencies continue to produce preliminary contracts (and even the proposta d’acquisto) that are legally muddled, somewhat untidy and confusing. This to me illustrates that there are gaps in the system.

Are there any plans to introduce reforms to the process, thereby improving the quality of what I would consider to be an important milestone when purchasing a property in Italy? You have already asserted that it is “good to sign the preliminary contract”…I agree, it can be a useful tool, providing it has been drafted properly by someone who is professionally qualified and providing it also protects the legal position of the buyer and not just the vendor. Sadly, many tend to be one sided.

Personally, I would like to see some reforms but I guess that this is asking too much.

:confused: So it makes no difference if you get a public deed when you buy the house or a private one, because when you register the property with the land registry the notary has to notorise the deed and does all the checks to bring it up to the same level. The public deed is just written by the notary and saves time if not money when all is completed? So the public deed is best?

[QUOTE=DaveJ]:confused: So it makes no difference if you get a public deed when you buy the house or a private one, because when you register the property with the land registry the notary has to notorise the deed and does all the checks to bring it up to the same level. The public deed is just written by the notary and saves time if not money when all is completed? So the public deed is best?[/QUOTE]

yes public deed is best.
It has also the power to be considered a full proof in a trial.
It means that is not necessary to prove the facts that the notary says that happened before him.
Most of the deed in real estate transactions are public

[QUOTE=Charles Joseph]Quote: “The compromesso (or preliminary contract) is usually a private deed, often drafted by a notary, but also by lawyers, or even sales agencies”.

My understanding is that the contratto preliminare di compravendita is considered, as per the provisions stipulated in the Codice Civile, to be a contract to all intents and purposes. It is enforceable by law. Moreover, since it legally binds vendor and buyer, it has far reaching legal consequences for both parties.

Yet some real estate agencies continue to produce preliminary contracts (and even the proposta d’acquisto) that are legally muddled, somewhat untidy and confusing. This to me illustrates that there are gaps in the system.

Are there any plans to introduce reforms to the process, thereby improving the quality of what I would consider to be an important milestone when purchasing a property in Italy? You have already asserted that it is “good to sign the preliminary contract”…I agree, it can be a useful tool, providing it has been drafted properly by someone who is professionally qualified and providing it also protects the legal position of the buyer and not just the vendor. Sadly, many tend to be one sided.

Personally, I would like to see some reforms but I guess that this is asking too much.[/QUOTE]

I completely agree with you.
I only had no time to complete my words (i've to work too...)
since preliminary contrac is only a private deed, it could happen that it's not drefted with professional qualification.
It happens with some real estate agencies.
Their goal is to sell as soon as possible and so they don't care so much about the quality of the deal and just wont a "piece of paper" with a signature, so they push the buyer to sign a contract without a good analsys of the transaction.
Obviously my advice, but is a common sense advice, is to sign nothing without legal assistance.
If possible ask to a notary to draft the deed and BEFORE he drafts it, ask him to verify if there are mortgages and the reugularity of the ownership of the vendor.
I agree that, de iure condendo, some reforms are necessary.
One good reform just approved, is about new houses built by an entrepeuner.
If he gets money from the buyer in the gap between the prelimnary contract and the public deed, he MUST give to the buyer a bank or insurance guarantee for the restitution of the money in case of his failure or bankruptcy

Yes I saw an interesting article o Il Sole 24 Ore about this new legislation. It also protects people who are buying through cooperatives as there have been many cases of fraudulent behaviour in the past, with people losing everything.

It was apparently going through parlamento...has it been passed?

[QUOTE=Charles Joseph]Yes I saw an interesting article o Il Sole 24 Ore about this new legislation. It also protects people who are buying through cooperatives as there have been many cases of fraudulent behaviour in the past, with people losing everything.

It was apparently going through parlamento...has it been passed?[/QUOTE]

Yes
Consiglio dei Ministri 10/6/2005
It's going to be published in Gazzetta Ufficiale

[QUOTE=notaio]yes public deed is best.
It has also the power to be considered a full proof in a trial.
It means that is not necessary to prove the facts that the notary says that happened before him.
Most of the deed in real estate transactions are public[/QUOTE]

So do you think that for many in the forum who say they have brought by private deed that they are getting confused with the Quote: “The compromesso (or preliminary contract) is usually a private deed, often drafted by a notary, but also by lawyers, or even sales agencies”. and have in fact brought by public deed providing it was written by the notary.

I take it we are talking about two different deeds the compromesso, an agreement of the house purchase between buyer and vendor. The second is the deed of the property/land.

Polly...

My understanding is that the preliminary contract is a contract between the two parties and not a deed.

The private deed in question refers to the srcittura privata autenticata which is used as an alternative to the atto pubblico. These are used to convey the title deeds from vendor to buyer at the time of the Rogito Notarile. In essence, these two documents replicate much of what is contained in the contratto preliminare.

Sometimes the compromesso is referred to as a scrittura privata but this is why I said that in many cases the documentation can be legally muddled and confused.

I'll try to be clear and to create less confusion with my english, considering
that some legal words have different meanings in different languages.
Let’s start from the beginning
A "contract" is an agreement between 2 parties with whom they put down the
rules of their economic partnership.
I've used contract and deed as the same word, but may be my English was wrong.
A contract needs no formalities, BUT some contracts needs formalities.
all contracts related to real estate MUST be written: words value is zero.
Contratto preliminare (compromesso) is a contract with whom the vendor is binded
to sell and the buyer is binded to buy, but it doesn't transfer the ownership.
It is a promise and like all promises needs to be confirmed: this happens with the purchase contract, drafted or authenticated by a notary in the way I explained before, it’s only with this second contract that the property is transferred from the vendor to the buyer
Compromesso must be a written contract, but it doesn't necesserly need the presence
of a notary.
Many are drafted by notaries, some by lawyers, some by real estates agencies, some by the parties on their own.
It is usually a “scrittura privata” a private contract. Even when drafted by a notary.
In this case the notary acts like a solicitor, an expert lawyer, that write the contract, but do not authenticate it.
Since the contract is private, it doesn’t exist for the others, including tax authorities, so you pay no taxes for the compromesso.
It's not necessary to have a contratto preliminare when you buy an house,
because, if you already have the money and the vendor is ready and able to sell,, you can stipulate directly the contract of purchase.
Since this a rare opportunity, the purchase is often preceded by the compromesso
The buyer gives a deposit to the vendor, confirms his intention to buy and bind the vendor to sell.
The deposit will be included in the price of the purchase, but if you’ll change your idea and decide to buy not, you lose the deposit and can be called before a judge to pay for other damages.
It’s better, of course, to give not a deposit very high (usually 10-15% of the price) because if is the vendor that changes his idea and decides to sell not, or the house have a mortgages he didn’t mentioned, you’ll wait a long to get back your money.

[QUOTE=notaio]It’s better, of course, to give not a deposit very high (usually 10-15% of the price) because if is the vendor that changes his idea and decides to sell not, or the house have a mortgages he didn’t mentioned, you’ll wait a long to get back your money.[/QUOTE]

Thanks Charles and Notaio, Very helpful, not to keen on this last bit though!

Polls

You can, as Notaio says, skip the contratto preliminare and proceed straight to the atto. But this very much depends on the circumstances.

Much of the confusion stems from the fact that under English law contracts are generally not required to be in a particular form or for any particular formalities to be observed in their execution. This is in contrast to other jurisdictions such as in Italy, where writing or notarisation is required.

For complex situations I would still use the contratto preliminare and build in a set of conditional clauses to protect your own legal position. It is a very useful tool if used properly.

I am aware of number of cases where the buyer has entered into a purchase with just a proposta d’acquista irrevocabile, only to face difficulty later on. In most cases you will be asked to pay a deposit at this stage. Some agents will also ask for their commission at this stage, although I would question this. I am not aware of any cooling off period.

You must remember that a proposta is unilateral in that it only binds the buyer until the vendor accepts your offer of course. This is why I would suggest that you insert clauses in the proposta stipulating that it is not to be binding until the vendor accepts (in writing).

I would also insert a clause stipulating that in the event a specific condition is not met, the proposta becomes ineffective and your deposit is to be refunded in full. For example:

“In mancanza di tale (whatever the condition is) questa proposta risulterà nulla e la caparra restituita senza nessuna penale.”

Polls…a note about deposits:

Deposit (caparra) There are two types of deposit.

A) Caparra penitenziale:

If you fail or refuse to perform the contract without lawful reason after you have signed the agreement/contract you will lose your entire deposit. However, there is some comfort in that you will have, by law, the same route to compensation if the vendor pulls out without lawful reason, and he/she forfeits double your deposit.

B) Caparra confermatoria

As with the caparra penitenziale, if you fail or refuse to perform the contract without lawful reason after you have signed the agreement/contract you will lose your entire deposit. If the vendor pulls out without lawful reason, he/she forfeits double your deposit. Additionally, in the event of a material breach, not only is the claimant entitled to recover damages as outlined above, he/she can also seek a hearing to enforce the contract.

Another useful thing to do if you are paying a deposit of more than 12.500 euro is to get bank guarantees from the vendor's bank so that your deposit will be returned in the event the contract becomes ineffective. You can insert a clause in the contract to cover this.