1673 Lawyer Required

No you don't have to get a lawyer - there are plenty of 'threads' on this in the Forums.

If you want to play safe - get a lawyer, otherwise - be Italian, and don't.

[Unless of course its a complcated purchase]

Before signing or paying anything, contact the notary and ask him to verify the whole procedure.

[QUOTE=notaio]Before signing or paying anything, contact the notary and ask him to verify the whole procedure.[/QUOTE]

I have paid a deposit etc

[QUOTE=kanea]I have paid a deposit etc[/QUOTE]

Ok, don't worry.
Contact as well the notary and ask him to verify if everything is ok.
Have you already signed a compromesso or are you going to sign the atto pubblico?

It's a little odd that the Notaio has been 'selected' by the owner, unless they are just trying to be helpful by suggesting one.
Although the Notaio is supposed to be impartial, you (the buyer) will be paying their cost, so you have the right to choose which Notaio you use.

The advice from 'Notiao' is good (as always); get the Notary involved as early as possible, in order to avoid problems later.

[QUOTE=Marc]It's a little odd that the Notaio has been 'selected' by the owner..........[/QUOTE]

Find your own; it's always a sensible precaution. I'm sure there's nothing under-hand going on, but it IS a house you're buying, not a car. So in my eyes, treat it with caution, respect etc. You seem to have an odd feeling about it otherwise you might not be looking for an impartial; trust your gut feeling .... Remeber, Caveat Emptor!

If you need help, send me a PM & I'll see what I can do ;)

I agree.
You're going to pay the notary, you have the right to choose him/her.
Do not accept any imposition on this matter.
On the other hand, and trying to think positive, there might be some acceptable reasons to choose the notary suggested by the vendor:
- the property has a complicated "history", with many purchases in the past or hineritance problems, that have been handled by that specific notary, who now has a peculiar experience and is able to solve the matter faster than another notary;
- you're buying a flat in a condominium and that notary has already draft the purchases of other apartaments, so, once again, the contract could be signed more rapidly, since he already has all the documents inherent the building.
These ere just mere examples, but your vendor must always justify why he wants you to go to [I]that[/I] notary.
He could probably be even the smartest "on stage", but, remember, it must be your choice.

[QUOTE=alan haynes]

If you want to play safe - get a lawyer, otherwise - be Italian, and don't.

[/QUOTE]

alan....you forgot to mention that Italians DO know Italian law, whereas English people DON'T. We hardly speak the language, never mind understand the legal jargon in Italian!!

An Italian would not buy a house in the UK without a solicitor. It is common sense and Charles has covered this issue so many times that it's pointless to repeat the same points over and over again, but as Marc correctly said in his thread, Caveat Emptor is the principle that rules. You make a mistake, you pay for it. And you are investing a small fortune to buy a house, not a car.

Of course your "be Italian and don't get a lawyer" advice assumes that Kanea's estate agent is so competent that he has adviced him about pre emption rights, rights of way over the property...hold on, shall we now assume that the Notaio (a public official) will be so kind to "check" that Kanea is not being sold a property with a massive charge registered in favour of a bank?

However you look at it, the estate agent's interest is TO SELL THE PROPERTY or he won't get paid: if there are problems with the property, he would certainly cover them up in order to get the property off the market and receive his (double) commission.

The Notaio's job is not to dispense legal advice, and you are very lucky if you find a notaio that speaks fluent english to explain to a non-Italian all the potential problems with your purchase.

Finally: if things go wrong? Do you blame the estate agent? Sue him in Italy? you would still need a lawyer and it would cost you 3 times more than hiring one BEFORE completing the purchase.

You hear all these stories about "land grab" and "purchases from hell" (especially in Spain), one would wonder: why does this happens? maybe because the Buyer decided to save on the initial lawyers' fees (going rate for an Italian lawyer in the UK is about £1500, for an Italian lawyer in Italy about €3500 -in any event, it is cheaper to pay the legal fees thatn the estate agents commission), andthe problems caught up with them in the end.

Kanea: read if you can, with careful consideration, all the comments made by the regular users of this forum about the opportunity of using a solicitor, then draw your own conclusions....

Laura, I've posted a lot of times about this matter, so I don't do it again.
I've already said that a lawyer might be useful for a foreign citizen in order to help him/her to understand the legal process.
Anyway you're inaccurate (sorry if it sounds rude, but my english is too poor).
When you say that "[I]shall we now assume that the Notaio (a public official) will be so kind to "check" that Kanea is not being sold a property with a massive charge registered in favour of a bank"[/I]
This is exactly one of the duties of a notaio: it's something he MUST verfy and if he desn't do it precisely and something goes wrong (as you say) he's personally liable.
I'm not saying this polemically, but only to give a correct information.

Thanks for all your replys, im now more confused than before i posted, i have been advised by the agent, that the seller has appointed a Notary and he will check for any monies outstanding on the house, Pre exemption etc

[QUOTE=kanea]Thanks for all your replys, im now more confused than before i posted, i have been advised by the agent, that the seller has appointed a Notary and he will check for any monies outstanding on the house, Pre exemption etc[/QUOTE]

You may wish to contact , [email]gabriele.giambrone@giambronelaw.co.uk[/email]

Kanea…

I appreciate that it can be very confusing for you (I did send you a pm).

Your question and the ongoing debate concerning which legal professional to turn to is an important one.

At the very outset of any purchase the buyer needs to weigh up all the risks and in the end make a decision on how best to proceed. This will depend upon the circumstances of the purchase. Obviously this presents a dilemma. Who do you turn to especially when you are trying to do all of this from a few thousand miles away?

In all legal systems, whether codified or not, you have to remember that it is in the buyers BEST INTERESTS to ensure that there are no potential snags prior to entering into a binding contract, which may lead to expensive post purchase litigation if they are not sorted out beforehand.

Now, Notaio will always argue his case (as I would expect him to do) as he has his own commercial interests to think of. A Solicitor will of course do the same. But for anyone to give you the impression (sorry Alan I disagree with your assertion) that you should simply do things the Italian way is incorrect and misleading. This is a common mistake. In many cases where contracts have been entered into and where problems have resulted from unrealistic or arbitrary situations, the buyers had no idea of the differences between our legal systems and made false assumptions about their own legal rights.

If the notary you have appointed (as Notaio correctly says, since you are paying for the service you have the right to select one) is able to provide you with ALL the answers to your questions then there’s no problem. If not, and you want independent (remember a notary has to maintain impartiality at all times) advice, then it is best to seek a competent solicitor.

But you need to bear in mind that neither a notary nor a solicitor is infallible. Moreover, when needing the services of an Italian solicitor, there’s no point in appointing someone who specialises in canon law for example. Equally, a notary will not provide you with specific advice about the asking price or what terms you should negotiate with the vendor.

Remember that there is a gap between the Common law of England and Wales and Italian Civil law and it will be best to seek a professional who is fully conversant with both systems.

Again, this presents a dilemma. Who should you turn to? If anyone is in doubt then ther are free to contact me via pm or e-mail. I am more than happy to recommend one or two highly competent lawyers.

[QUOTE=Charles Joseph]Kanea…

I appreciate that it can be very confusing for you (I did send you a pm).

Your question and the ongoing debate concerning which legal professional to turn to is an important one.

At the very outset of any purchase the buyer needs to weigh up all the risks and in the end make a decision on how best to proceed. This will depend upon the circumstances of the purchase. Obviously this presents a dilemma. Who do you turn to especially when you are trying to do all of this from a few thousand miles away?

In all legal systems, whether codified or not, you have to remember that it is in the buyers BEST INTERESTS to ensure that there are no potential snags prior to entering into a binding contract, which may lead to expensive post purchase litigation if they are not sorted out beforehand.

Now, Notaio will always argue his case (as I would expect him to do) as he has his own commercial interests to think of. A Solicitor will of course do the same. But for anyone to give you the impression (sorry Alan I disagree with your assertion) that you should simply do things the Italian way is incorrect and misleading. This is a common mistake. In many cases where contracts have been entered into and where problems have resulted from unrealistic or arbitrary situations, the buyers had no idea of the differences between our legal systems and made false assumptions about their own legal rights.

If the notary you have appointed (as Notaio correctly says, since you are paying for the service you have the right to select one) is able to provide you with ALL the answers to your questions then there’s no problem. If not, and you want independent (remember a notary has to maintain impartiality at all times) advice, then it is best to seek a competent solicitor.

But you need to bear in mind that neither a notary nor a solicitor is infallible. Moreover, when needing the services of an Italian solicitor, there’s no point in appointing someone who specialises in canon law for example. Equally, a notary will not provide you with specific advice about the asking price or what terms you should negotiate with the vendor.

Remember that there is a gap between the Common law of England and Wales and Italian Civil law and it will be best to seek a professional who is fully conversant with both systems.

Again, this presents a dilemma. Who should you turn to? If anyone is in doubt then ther are free to contact me via pm or e-mail. I am more than happy to recommend one or two highly competent lawyers.[/QUOTE]

Charles i have sent you a PM

[QUOTE=kanea]Charles i have sent you a PM[/QUOTE]

All this reminds of a debate that we had in the UK twenty odd years ago -
[I]< why bother employing an "over-qualified solicitor" for mundane work such as house conveyance?>[/I]
As a result, several building societies / estate agents began using licenced conveyancers - with the result that solicitors' charges for conveyance collapsed and people forgot about the alternative of licenced conveyancers. I am not sure what we can conclude from this. Perhaps that the notion of "caveat emptor" runs deep in our suspicious Anglo-Saxon souls and we would prefer a partisan solicitor representing our interests rather than a neutral party acting for both sides.

[QUOTE=sdoj]All this reminds of a debate that we had in the UK twenty odd years ago -
[I]< why bother employing an "over-qualified solicitor" for mundane work such as house conveyance?>[/I]
As a result, several buliding societies / estate agents began using licenced conveyancers - with the result that solicitors' charges for conveyance collapsed and people forgot about the alternative of licenced conveyancers. I am not sure what we can conclude from this. Perhaps that the notion of "caveat emptor" runs deep in our suspicious Anglo-Saxon souls and we would rather a partisan solicitor representing our interests rather than a neutral party acting for both sides.[/QUOTE]

In fact, caveat emptor still remains a cornerstone of conveyancing in England.

I wouldn't say that house conveyancing in Italy is always quite that mundane!

I couldn't agree more Charles :-)

Regrettably though, the outcome is that the poor old buyer ends up paying three times - to an Agent, to a Lawyer and to a Notaio -for essentially the same service.

[QUOTE=Charles Joseph]Kanea…

I appreciate that it can be very confusing for you (I did send you a pm).

Your question and the ongoing debate concerning which legal professional to turn to is an important one.

At the very outset of any purchase the buyer needs to weigh up all the risks and in the end make a decision on how best to proceed. This will depend upon the circumstances of the purchase. Obviously this presents a dilemma. Who do you turn to especially when you are trying to do all of this from a few thousand miles away?

In all legal systems, whether codified or not, you have to remember that it is in the buyers BEST INTERESTS to ensure that there are no potential snags prior to entering into a binding contract, which may lead to expensive post purchase litigation if they are not sorted out beforehand.

Now, Notaio will always argue his case (as I would expect him to do) as he has his own commercial interests to think of. A Solicitor will of course do the same. But for anyone to give you the impression (sorry Alan I disagree with your assertion) that you should simply do things the Italian way is incorrect and misleading. This is a common mistake. In many cases where contracts have been entered into and where problems have resulted from unrealistic or arbitrary situations, the buyers had no idea of the differences between our legal systems and made false assumptions about their own legal rights.

If the notary you have appointed (as Notaio correctly says, since you are paying for the service you have the right to select one) is able to provide you with ALL the answers to your questions then there’s no problem. If not, and you want independent (remember a notary has to maintain impartiality at all times) advice, then it is best to seek a competent solicitor.

But you need to bear in mind that neither a notary nor a solicitor is infallible. Moreover, when needing the services of an Italian solicitor, there’s no point in appointing someone who specialises in canon law for example. Equally, a notary will not provide you with specific advice about the asking price or what terms you should negotiate with the vendor.

Remember that there is a gap between the Common law of England and Wales and Italian Civil law and it will be best to seek a professional who is fully conversant with both systems.

Again, this presents a dilemma. Who should you turn to? If anyone is in doubt then ther are free to contact me via pm or e-mail. I am more than happy to recommend one or two highly competent lawyers.[/QUOTE]

Why should I argue Charles?
I do not want to change your minds and I've always affirmed that a lawyer can help overseas buyers to understand the differences between the two legal systems: after all many buyers don't even know what a notaio is in civil law countries, so it's quite impossible that they might consider him as an expert in real estate law: I may sadden for this ignorance, but so it is.
I'm not Don Quixote and I don't want to fight against windmills.
But I still find that is a waste of money if the lawyer is asked to do the same job that a notary - by law - is bound to do: surveys about legal ownership of the vendor, mortgages, building permissions.....
Or if the lawyer is asked to draft the compromesso, that a notary (since he's going to draft the atto pubblico) generally drafts for free, and drafts with the same spirit of the atto pubblico: an impartial agreement of the parties' interests, trying to prevent all potential sources of litigation.
So, it's not a matter of "commercial interests" as you say, but to avoid double payments for overseas buyers.
Moreover, reading the posts on the forum, I've also realized that many of the problems related by our firends, are essentially of technical more than legal kind.
In this field nor a solicitor, nor a notary has too much competence or power.
Anyway, I think that a good compromise for the overseas buyer, when he starts the purchasing process, might be a cooperation between an english solicitor and an italian notaio.
The first one could explain how the system works here in Italy and could help the buyer to "cross the bridge", while a notaio could do all the preliminary surveys about the property that's going to be bought (catasto, land register etc).

An extremely valid point Marc. Nobody wants to pay more when transaction costs are already high. Equally, no one wants to end up having to waste time and money (not forgetting the stress involved) with long and drawn-out court proceedings when things go pear shaped. By this I am not implying that house buying in Italy is unsafe, but that there are risks and that everyone should be aware of their rights. You must bear in mind that an Italian court cannot justify any mistakes on a buyer’s part, mistakes that cannot be rectified after completion.

Some transactions will be straightforward, other more complex, demanding, challenging and downright frustrating and never mundane, but I can assure you that we always try our utmost to ensure that our clients understand their legal rights and that they do not commit themselves before they are totally comfortable and happy with everything.

To pick up on your last point Notaio, this is something we do already when required. The firm of London-based Italian solicitors, as well as the lawyers in the Marche I deal with are both extremely competent and highly professional in this field. Moreover, they will know which notary to appoint and work in close cooperation with the Notaio. Whenever it has been necessary to use their services, we have managed to save our clients money and the legal fees in these instances have been well justified. Interestingly, the majority of buyers of high value properties use lawyers all the time and I have to deal with some pretty tough ones at that! This is because such buyers see the bigger picture and cover other significantly important areas as well.

I still maintain that, with the exception of the many professional Italian or non-Italian real estate agencies, some of the worst offenders in this industry are ex-pat Brits who move to Italy, run their B&B’s and try to cash in on the gold rush mentality. Apart from the fact that may be totally incompetent, these people are interested in just one thing. Money! They will not tell you about potential problems and are not interested in the consequences. These people have no sympathy for anyone who doesn’t know the system and when they get very hot under the collar if you tell them that a solicitor is acting on your behalf, this is a sure sign that something is wrong. If what I say on this Forum makes life difficult for this community of abusivi, then so be it – if they can’t stand the heat, they should get out of the kitchen!

Notaio, I think your point is well justified. I think that many Common Law countries think of Italian notarial proceedings as somewhat paternalistic because they do not really understand what goes on. Yes, you are right, a Notaio does not act for nothing and that part of his/her duty is to see to it that the wording in the contract unambiguously reflects the intentions of the contracting parties, and that everyone is aware of the legal issues involved.

I actually prefer when things are straightforward, but life is not always that simple. At times a vendor will not disclose everything and I like to sort everything out beforehand. If this means getting a lawyer involved to sort out complex issues, which may be impractical for the notary to handle, then all I can do is to advise my clients accordingly. For us, professional integrity and reputation is of paramount importance!

[QUOTE=Marc]I couldn't agree more Charles :-)

Regrettably though, the outcome is that the poor old buyer ends up paying three times - to an Agent, to a Lawyer and to a Notaio -for essentially the same service.[/QUOTE]

We are using Giambrone & Law ([url]www.giambronelaw.co.uk[/url]) as this firm came highly recommended in this forum and in the Italy Magazine: we are very satisfied with the work done by our solicitors and I would have not bought a house without receiving proper legal advice and explanation not only of the process (there are several books on the subject) but mainly of the contracts which we were being asked to sign.

I remember that when the Compromesso was given to us, it was in Italian with a translation in English made by the estate agent's wife: the estate agent was asked to explain the legal consequences and the difference between a caparra penitenziale and a deposito cauzionale and he simply did not have a clue about what I was talking about! Our solicitors changed the Contract completely and added a lot of clauses to protect us.

I think that the estate agent should be used to source a suitable property (this is their main job, for which we pay a small fortune- between 3 and 6% commission); the solicitor must be used to assist you in buying the house from a legal point of view AND PROTECT YOUR INTEREST; the notaio is simply used to ensure that the transaction is correct from a formal point of view, but I still do not understand why they charge so much for so little (our Notaio's fees are 3 times higher than the solicitors', but the solicitors have done all the work and they have also appointed our Notaio). Can someone explain why the Notary's fees are so expensive?

A notaio will not tell you if the asking price is a rip off (as you will not see the notaio until the very last day when you sign the public deed), an estate agent will not tell you that the asking price is too high (the higher the price the better his commission), maybe a good solicitor should be able to tell you that.

In our case, Giambrone Solicitors advised us that the asking price was too high for the area and they prepared a proposta di acquisto with an offer of €140K against an asking price of €175K and the Vendor accepted it! This despite the fact that, whilst in Italy, we had "agreed in principle" for €160K ( we did not have a clue about house prices in the region!) so the use of a competent lawyer immediately saved us €20K extra.

Kanea, to stick to this thread, if you want details of a good Italian lawyer in the UK, contact [email]gabriele.giambrone@giambronelaw.co.uk[/email]

I think what Italianlover is saying here confirms the need for people to think outside the box and not to fall into the Panglossian trap of simply and blindly doings things the Italian way! Ignorance is not bliss and that is why it is not only a good idea to do your homework, but also to appoint the right professional to do the job.

I am particularly interested in:

1) “I remember that when the Compromesso was given to us, it was in Italian with a translation in English made by the estate agent's wife: the estate agent was asked to explain the legal consequences and the difference between a caparra penitenziale and a deposito cauzionale and he simply did not have a clue about what I was talking about! Our solicitors changed the Contract completely and added a lot of clauses to protect us.”

This is exactly one of the typical problems I have been trying to highlight on Forum.

And…

2) That “the use of a competent lawyer immediately saved us €20K extra”.

Interesting how this diametrically opposes the assertion that: “Regrettably though, the outcome is that the poor old buyer ends up paying three times - to an Agent, to a Lawyer and to a Notaio -for essentially the same service”.

I don't know how it works in England, but in Italy isn't the estate agent's job to draft contracts or to give legal advices:
they have no specific competence in this matter and, remember they have a huge conflict of interests, since thay will gain (a lot of) money if the purchase is closed.

It doesn't mean that somebody couldn't attempt to do it.
Normally italians have "antibodies", since they have an idea of the system and so look for legal advice, often asking it to a notary (as I wrote a lot of times and even if sounds strange to the majority on the forum).

It seems to me that uk people entrust themselves to agencies much more than italian, but may be I'm wrong

I think that both of the instances you quote Charles, reinforce the point that I was trying to make, rather than diametrically opposing it.

In both cases, 'the right professional to do the job' was the Lawyer. An unfortunate feature of the Italian system, is that buyers don't have the opportunity to 'appoint' the agent. If they see a house they like, they are committed to pay the agent, regardless of whether that agent is competent or, as in the the two cases you cite, incompetent and dishonest.

Had you been the buyer in either of the two cases you cite, would you not have been extremely reluctant to hand the Agent his (or her) fee?

[QUOTE=notaio]I don't know how it works in England, but in Italy isn't the estate agent's job to draft contracts or to give legal advices:
they have no specific competence in this matter and, remember they have a huge conflict of interests, since thay will gain (a lot of) money if the purchase is closed.

It doesn't mean that somebody couldn't attempt to do it.
Normally italians have "antibodies", since they have an idea of the system and so look for legal advice, often asking it to a notary (as I wrote a lot of times and even if sounds strange to the majority on the forum).

It seems to me that uk people entrust themselves to agencies much more than italian, but may be I'm wrong[/QUOTE]

Dear Notaio

When buying a house in England and Wales (Scotland has quite a different sealed bid system - offerta sigillata) it is usually through an estate agent (EA) who charges between 1 and 3% percent and then to everyone's irritation adds VAT(IVA) on top. Once a bid has been accepted the EA's job has finished except from answeing queries about the slow rate of progress.

Both parties visit their own solicitors - the purchaser's solicitors (PS) takes a non-returnable deposit from the purchaser (P), usullay 5-10%, which they hold until completion. Completion usually happens within a month of exchange of contracts, which can be several weeks or months after the bid has been accepted. The period inbetween is when the solicitors drive both sides crazy.
I have composed a dialogue between some of the protagonists, which probably isn't what happens in reality but it certainly feels like it when you are waiting to complete:

15 days after the deposit has been paid:
P to PS: "have you heard anything from the vendor's solicitors (VS)?";
PS to P: "I wrote to them ten days ago with our standard list of enquiries but I have not had a reply, I will send a reminder";
PS to secretary (PSS): "could you write a letter to VS with our standard enquiries and bill V's account with another phonecall and two letters";
PSS (a bit new) to PS: "but this will be the first letter...ah...oh, I see...";
P leaves it a few more days and then:
P to EA: "have you heard anything from V or VS";
EA to P: "From V: yes, every day, in fact...LOL but from VS I haven't heard a thing...I will give VS a call, right now";
EA forgets all about it;
a few more days later P happens to be walking past the new house and notices the FOR SALE sign is still in place
P to EA: "why haven't you taken your board down"?;
EA to P: "we usually keep them up a bit longer - it is good publicity for us...but it should say UNDER OFFER...doesn't it?";
P to EA: "No, it doesnt't and H A V E you heard from VS?";
EA to P: "I will attend to the board right away and then call VS"
EA to secretary (EAS): "get someone round to V's house double quick and have them attach an UNDER OFFER sign to the board...we don't want other agents showing the place, do we? Oh, and when you have a moment call VS and give them a prod";
EAS to vendor's solicitors' secretary (VSS): "have you heard from PS?";
VSS to EAS: "yes, a letter arrived last Thursday but VS was too busy to look at it and now he has gone skiing for a fortnight";
EAS to VSS: "I thought skiing was last month?";
VSS to EAS: "yes it was but their youngest had a bad fall and they returned early";
EAS to VSS: "oh dear, I hope the child is OK...oh I suppose they must be if they have gone again";
P to EAS: "can I speak to EA PLEASE?";
P gets put on hold and has to bear interminable gingles, whilst
EAS to EA: "it's P again he sounds a bit agitato";
EA to EAS: "Oh, I can't face P again ... you see if you can deal with it";
EAS to P: "I am afraid he is with a client, can I help?";
P to EAS: "I do hope so, I am wondering if there is any news from VS?";
EAS to P: "Ah yes, I spoke to VS last week but he is skiing";
P to EAS: "you mean you called VS on the slopes?...I am impressed"
EAS to PC: "LOL ... no I spoke with VSS"

Meanwhile there are parallel conversations between V, VS, VSS, EAS and EA.

When I last purchased a house in England I had a fantasy of kidnapping the families of VS and PS and keeping them hidden in a cave until VS and PS had completed the conveyance.

In fairness though there are quite often long chains of people all needing to complete on the same day, which I don't think happens much in Italy.

[QUOTE=notaio]I don't know how it works in England, but in Italy isn't the estate agent's job to draft contracts or to give legal advices:
they have no specific competence in this matter and, remember they have a huge conflict of interests, since thay will gain (a lot of) money if the purchase is closed.

It doesn't mean that somebody couldn't attempt to do it.
Normally italians have "antibodies", since they have an idea of the system and so look for legal advice, often asking it to a notary (as I wrote a lot of times and even if sounds strange to the majority on the forum).

It seems to me that uk people entrust themselves to agencies much more than italian, but may be I'm wrong[/QUOTE]

This is the whole point Italian's understand their system where as we do not and it's not just the legal aspects but the whole situation of rights, building rules and total costs. All of this needs, to be understood about every property viewed or how can an informed choice be made about the best property to buy. So in the first instance the agent or vendor is the person who should give this information. In the second stage once a property has been chosen then the information has to be confirmed as correct. It's bad enough buying in England with at least some understanding so imagine how it is if you don't. For example can you explain what these mean.

[font=Arial][size=2]Usupacione[/size][/font]
[font=Arial][size=2]Usufrutto[/size][/font]
[font=Arial][size=2]Enfiteusi[/size][/font]

[QUOTE=Marc]I couldn't agree more Charles :-)

Regrettably though, the outcome is that the poor old buyer ends up paying three times - to an Agent, to a Lawyer and to a Notaio -for essentially the same service.[/QUOTE]

In other words Marc, taken within the context of my previous posting, what you appear to be inferring here is that although you agree in general with what I said, there is really no need for a solicitor because it means additional and unnecessary expense, although Italianlover’s own personal experience unequivocally refutes your statement. Why is it I get the impression that you are now trying to twist your argument around?

Yes, the system in Italy is somewhat unfortunate in that there are a number of agents, licensed or otherwise, who do not have the right mix of knowledge, attitude, skills, qualifications and experience. This, I believe, comes down, as mentioned before, to an ineffective system of governance. But this alone should not stop a buyer from being more diligent and prudent. Getting carried away by the dream of living abroad carries inevitable risks. Although things can and do go smoothly, there is also plenty of scope for getting things wrong. Most problems or "disasters", despite the best-laid plans, are inevitably down to poor risk management, not knowing the language or culture and making false assumptions about legal rights.

Buyers should think outside the box and take a more pragmatic approach to mitigating the potential risks. This is not rocket science but common sense!

I recently read the case of a buyer who purchased a property in Tuscany and had nothing but problems. Upon purchasing the property, he inherited a substantial debt – one he did not realise came with the house. Obviously, in this particular case the whole process was flawed from the start and I have to therefore ask myself why neither the agent nor the notary were able to prevent this grave and expensive error from happening. Perhaps a little independent advice from solicitor could have saved this buyer a whole lot of unnecessary aggravation and cost?

Sdoj: your dialogue was really funny.
I’ve not your skill, so I’ll limit my post to the serious side, explaining how it works in Italy.
About 50% of the purchases pass trough an estate agent, but the number is now increasing.
The other part are DIY offers, with newspaper advertisement, “on sale” signs in front of the house etc.
So, considering a “standard” purchase, we have to imagine two possibilities:
a) With estate agent
b) Without agent
Hypothesis a), with agent.
1 - The purchaser (P) finds the “right” house offered by the agent.
2 - P signs a “proposta d’acquisto” (proposal of purchase), normally filling and signing a pre-formed form prepared by the agent (SA), where he suggests the price, terms, times and conditions for the purchase.
The proposta d’acquisto wasn’t very used in the past, but the system is becoming more popular along with the diffusion of the agencies, because when the proposta d’acquisto is signed the agent has the right for his fee, so he has a real interest to have something signed as soon as possible
3 – The vendor (V) accepts the proposta d’acquisto and the two parties normally go to a notary and sign the compromesso (contratto preliminare) , that is the contract with whom V promises to sell and P promises to buy.
Some agents do not use notaries and draft on their own the compromesso, but people, normally, do not entrust this to the agent, preferring a notary (the majority) or a lawyer, because feel themselves more guaranteed .
At the moment of the compromesso P pays a deposit (caparra), usually 10/20% of the price and is established the date for the atto pubblico, according to the time necessary for P to collect the money.
4 – When the compromesso is drafted by a notary, all the enquiries about legal ownership of the Vendor, mortgages, building permissions etc. are made by the notary at that moment and he makes an updating before the atto pubblico.
If he didn’t daft the compromesso, all these enquiries are made before signing the atto pubblico anyway since these are professional duty of the notary.
5 – P and V sign the atto pubblico with the notary, the price is payied and the property goes from V to P and the notary looks after the further formalities: P’s name in the land register, catasto, taxes etc.
The time needed for this process depends on how long it takes P to collect the money.
The notary is able to draft the contract in no more than a week
Hypothesis a), without agent.
P and V reach a verbal agreement about the price, so they go to a notary and the process starts from the above point 3.
Of course people do not need a compromesso if P has already the money.
In this case the parties ask the notary to draft the atto pubblico, the notary makes all the necessary enquiries, consulting the land register, the catasto, the previous contract with whom the vendor purchased his house, the building permissions etc.
Unless specific troubles, all this needs no more than 7/10 days, but it could be done even in one-two days: i.e. if the notary drafted the vendor’s atto pubblico and so he has only to update his data.

I repeat, this is the process for a "standard purchase", of course there are more complicated one

Trullo

The terms you list all stem from Roman law concerning the possession of immovable property and although their theoretical concepts are underpinned by ancient traditions, they still apply today (Notaio – could use your help here). In a nutshell:

1)Usucapione: From the Latin possesso ad usucapionem, which enabled a person to claim possessory title of property in good faith, providing it was possession ad lungum tempus (long possession). Today, we have usucapione ordinario and usucapione abbreviato. These give a person rights to claim title of an immovable property, providing they have had uninterrupted use and enjoyment of that property for no less than 20 and 10 years respectively.

2)Usufrutto – this is not a form of ownership but the right to use someone else’s property. Its primary purpose, when Rome was a Republic, was to provide for widows. It became a legal institution when Rome was an Empire. Today, Usufrutto may confer continued rights (life interest) to the vendor to use and enjoy the property, although legal possession has passed to the buyer. The law, however, imposes certain limitations on the usufructuary (the holder of that right) with regards to what he/she is allowed to do to the property.

3)Enfiteusi is a right where you can enjoy a piece of agricultural land as though it were your own, although you are obliged to maintain and improve that piece of land. For this, the Enfiteuta (the person holding this right) has to pay an annual rent. This is, to some extent a form of diritto di prelazione that not many people are aware of, given that it is mainly found in southern Italy.

[QUOTE=trullomartinafranca]This is the whole point Italian's understand their system where as we do not and it's not just the legal aspects but the whole situation of rights, building rules and total costs. All of this needs, to be understood about every property viewed or how can an informed choice be made about the best property to buy. So in the first instance the agent or vendor is the person who should give this information. In the second stage once a property has been chosen then the information has to be confirmed as correct. It's bad enough buying in England with at least some understanding so imagine how it is if you don't. For example can you explain what these mean.

[font=Arial][size=2]Usupacione[/size][/font]
[font=Arial][size=2]Usufrutto[/size][/font]
[font=Arial][size=2]Enfiteusi[/size][/font][/QUOTE]

Martina (in italian it sounds better than "trullo" ;) ),
I understand very well how difficoult it might be.
Apart from the pleasure of posting and talking with people like you and the fact that this helps to keep my english in exercise, this is one of the reasons why I'm on the forum: to give some good advice (with all the limits of an advice on the net) and some explanation.
About your questions:
[B]- usucapione - [/B]
This is one of the ways to become owner of a real estate.
I f you have the public, uninterrupted and non violent possesion of an asset (i.e. a piece of land, an house etc...) for more than 20 years, you have the right to ask the legal ownership of that good taking action before a Tribunal against the fromal owner.
Just to be clear.
In "legal italian" with "possession" we mean to use something as if I was the owner.
So, if I use an house for more than 20 years, behaving as if I was the owner
that house can become mine, but only after a lawsuit
[B]- usufrutto - [/B]
It's the right to use and capitalize an asset (i.e. an house) for a specific period, usually for the whole life of the "usufruttuario".
The usufruttuario, that is the person who has the usufrutto, has the right to rent the house, to use it, to live there etc and, naturally, the duty to pay all the taxes and expensens related to the asset.
Meanwhile the owner has only a "naked property" - nuda proprietà.
He has no right to use the asset or take any income from it and can only wait until the usufrutto is over, usually when the usufruttuario dies.
when it happens, the naked property becomes automatically a full property, without any specific contract or document to sign.
Usufrutto is often used when parents want to buy an house for their children.
Parentes buy the usufrutto for themselves and the naked property for the children, so when the parents die, the children gain the full property without further formalities.
Another hypothesis is when the vendor of an hous is an old person.
In this case, sometime, the purchaser buy only the naked property (paying a lower price) and the vendor reserves for himself the usufrutto and keep on living in the house: when he dies the purchaser become full proprietor.
Other hypothesis is inheritance.
In a will is very common that the housband (or the wife) leaves the usufutto of all his estate to the spouse and the naked property to the children.
Might be many other example, but i think it's quite clear
[B]- enfiteusi - [/B]
It'a sort of legal fossil.
It's never used.
With enfiteusi, the proprietor of the asset is less than a naked proprietor, because he can only receive periodically a fee from the enfiteuta, who can act just like an owner, with the only duty of paying the fee and improving the asset (usually a land).
Enfiteusi can be endless, so it is tranferable to the heirs of the enfiteuta, differently from usufrutto, that finishes with the life ot the usufruttuario

Notaio,

your explanations are very interesting from an "academic" point of view (your English is very good btw!) BUT:

if you were in our shoes (i.e. an average English buyer with no or little knowledge of law- we do not know conveyancing law in this country as we use solicitors to do all the work!), wouldn't you want to appoint an independent legal adviser to explain [COLOR=DarkOrange]how and if [/COLOR] all these concepts are applicable to [COLOR=DarkOrange]our own purchase[/COLOR]?

In other words, the reason why most of us use a lawyer is not to be told what an usufrutto and an enfitusi is (i couldnt care any less to be honest!! :cool: ) , but to be reassured that these horrible legal concepts DO NOT AFFECT OUR OWN PURCHASE IN ANY WAY AND WE ARE SAFE IN BUYING THE HOUSE! :) :) :)

That's why most of us feel that the money spent for a lawyer or a legal adviser is money well spent!

[size=2]Thank you both Charles and Notaio, I get the idea. There can be quirky rights like these in England but not that common. We understand how our system works in England and that we know that a lawyer is acting solely on our behalf, it makes it less complicated for us, not that I'm saying things do not go wrong in England because they do. As I said before it's not just the legalities it is having someone that can be trusted to hold (my) hand through the whole process of understanding exactly what I am buying, how much it is going to cost me, whether a ruin can be converted to living accommodation etc. It has been said many times that not all agents are genuine in explaining this process so to be sure a lawyer is used. I can not see that a notary can give this amount of time or attention to each client that needs it, unless an independent notary can be employed in the same way as a lawyer. This is not to say that the outcome by using a notary is not as good as a lawyer it’s all the in-between stuff that needs to be sorted out too.

Don't mind what I'm called but thanks for the thought. :D
[/size]

[QUOTE=trullomartinafranca][size=2]Thank you both Charles and Notaio, I get the idea. There can be quirky rights like these in England but not that common. We understand how our system works in England and that we know that a lawyer is acting solely on our behalf, it makes it less complicated for us, not that I'm saying things do not go wrong in England because they do. As I said before it's not just the legalities it is having someone that can be trusted to hold (my) hand through the whole process of understanding exactly what I am buying, how much it is going to cost me, whether a ruin can be converted to living accommodation etc. It has been said many times that not all agents are genuine in explaining this process so to be sure a lawyer is used. I can not see that a notary can give this amount of time or attention to each client that needs it, unless an independent notary can be employed in the same way as a lawyer. This is not to say that the outcome by using a notary is not as good as a lawyer it’s all the in-between stuff that needs to be sorted out too.

Don't mind what I'm called but thanks for the thought. :D
[/size][/QUOTE]

Trullo,

you have exactly summarised the reasons why most of us Brits decide to appoint an independent Italian solicitor alongside the estate agent, purely to ensure that we can have someone we can trust to hold our hand throughout the very daunting and difficult purchase process.

Well done!