1331 Hypothetical question re;pre-exemption

That's an interesting question.

[QUOTE=alex and lyn]This is just a question which has been rattling around in my brain and I don't think it has been raised before.

If you were unfortunate enough to get into a Pre-exemption claim situation...say 10-11 months after purchase ..and during that time , you had spent say 20,000 Euros having things done to the property and grounds.....if they won their case , would they have to pay you for the work which you had had done ??

Not a problem for us as ours was sorted ( thank goodness) before we signed , but as we plod on with pouring money into the place..it just occurred to me that some other unfortunate sole may be heading for even more hassle.[/QUOTE]

Good question, needs a little bit complicated answer.
I'll try to be as simple as I can, but consider that I have to translate legal words, so... mercy of me.
If you are under a pre-emption claim, you are not considered to have a bona fide (good faith) possession, because you have not verified, before purchasing, if there were other people with pre-emption rights.
This means that if you've spent money to make your land better you only have the right to get an indemnity from the "pre-emptor".
This is not calculated regarding the "plus-value" that land has now, but only at the minimum amount between what you spent and the new increasing value of the land.
Here's an example.
I bought at a price of €. 100.000
I planted olive trees spending €. 20.000,00
thanks the new plantation, the land has now a value of 130.000 (plus-value)
I'll get an indemnity of only 20.000, even if the land has now a higher value.

In this case the buyer could take legal action against the vendor, to get the difference, because the vendor sold him something that had a hidden "surprise", and the vendor MUST give a full guarantee.
The buyer could take legal action against notaio too, in he didn't give him advice about the risk of pre-emption.

hope it's clear.

....but really scary eh ?????

[QUOTE=alex and lyn]....but really scary eh ?????[/QUOTE]

I get the impression from this thread and from what has previously been said on forum, that a lot of buyers are unaware of the diritti di prelazioni and associated consequences.

Overseas buyers (Brits at least) should follow the same principle that is used in common law– that of caveat emptor (let the buyer beware) which remains a cornerstone of conveyancing in England.

If the Law in England imposes a clear obligation upon buyers to find out as much as possible about the property they intend to buy, then it would be wise to do the same in any country. The key point, as highlighted here by Notaio, is that you need to carry out some preliminary enquiries prior to entering into a binding contract. But these enquiries are not just about whether the property may be subject to prelazioni (remember that there are 3 types). They should (depending upon your own specific case as rural properties differ from urban properties) also cover, among other things:

Ownership and status
Local land registry to check for registered charges or other burdens
The presence of easements or servitù as they are called in Italy
Company searches if buying from a company
Compliancy
Local authority and planning

I think this thread highlights an important point about contract, property and land law and the associated myths and mysteries, which to the uninformed can be appear daunting. Some developments aimed at unifying laws across different EEC jurisdictions are being made, but until that happens, you can expect significant diversity in many areas of the law so don’t succumb to any false assumptions as to your legal position when buying a property in Italy.

When in doubt, seek proper, professional advice right at the beginning. I cannot overemphasise the importance of this point!

[QUOTE=Charles Joseph]I get the impression from this thread and from what has previously been said on forum, that a lot of buyers are unaware of the diritti di prelazioni and associated consequences.

Overseas buyers (Brits at least) should follow the same principle that is used in common law– that of caveat emptor (let the buyer beware) which remains a cornerstone of conveyancing in England.

If the Law in England imposes a clear obligation upon buyers to find out as much as possible about the property they intend to buy, then it would be wise to do the same in any country. The key point, as highlighted here by Notaio, is that you need to carry out some preliminary enquiries prior to entering into a binding contract. But these enquiries are not just about whether the property may be subject to prelazioni (remember that there are 3 types). They should (depending upon your own specific case as rural properties differ from urban properties) also cover, among other things:

Ownership and status
Local land registry to check for registered charges or other burdens
The presence of easements or servitù as they are called in Italy
Company searches if buying from a company
Compliancy
Local authority and planning

I think this thread highlights an important point about contract, property and land law and the associated myths and mysteries, which to the uninformed can be appear daunting. Some developments aimed at unifying laws across different EEC jurisdictions are being made, but until that happens, you can expect significant diversity in many areas of the law so don’t succumb to any false assumptions as to your legal position when buying a property in Italy.

When in doubt, seek proper, professional advice right at the beginning. I cannot overemphasise the importance of this point![/QUOTE]

I totally agree.
I also remind you that the enquiries described by Charles Joseph are the essence of what a notary do... and the reason why you pay him.

[QUOTE=notaio]I totally agree.
I also remind you that the enquiries described by Charles Joseph are the essence of what a notary do... and the reason why you pay him.[/QUOTE]

[color=black]This is no reflection on you personally but if this is the essence of what a notary does....how come there are so many stories about pre-emption rights etc gone wrong for the buyers? [/color]

[color=black] [/color]

[color=black]Is it that some notaries not so good as it is the same with some lawyers and some agents? [/color]

[color=black] [/color]

[color=black]Having now experienced some of the mysteries of buying in [/color][color=black]Italy[/color][color=black], it is impossible to know who to trust unless you have received a high recommendation from someone and that you trust them as well. Actually no different than any where else in the world really, just makes it harder if you can't speak a word of their language and have little understanding of their laws. Especially when rules appear to be made to be broken! ;) [/color]

[color=black] [/color]

[color=black]Notaio, we are grateful for your help on this forum and sure that you are totally professional but as a notary you are not acting solely to protect the buyer. Your [color=black]responsibility is to[/color] ensure that the sale is legal, taxes paid and property has been registered in compliance with your country's laws.

[color=black][/color]
[color=black]Also if the buyer used a private contract as opposed to a public contract the notary has less obligation to check pre-emption rights etc.[/color]
[color=black][/color]
[color=black]So if for example at the rogito you discovered that the buyer had no knowledge about pre-emption rights etc or the contract had been badly written between the buyer and vendor what would you do? Cancel the rogito and send them away, to return when all complete or continue?[/color]

An independent lawyer would cover house purchase in much greater depth with the sole aim of protecting his/her client, assuming of course that they were professional. [/color]
[color=black] [/color]

[color=black]Please correct me if I am wrong, just trying to make sense of things. :) [/color]

Our UK based lawyer (mentioned elsewhere on this forum) advised us not to rely on the notaio's searches etc. The lawyer offered a service which comprised a variety of searches and confirmation of exactly the type Charles recommends, but at an astronomical price; something in the order of E7,000 if we took the full package. But when we asked about certainty of information/reports they said they were not able to give 100% assurances. This seems reasonable; how can it be proven for instance that everyone entitled to a pre-emption claim has been notified and dismissed their rights; you cannot prove a negative! The whole point of the exercise is to avoid costly and time-consuming post purchase litigation and if there is no possiblity of achieving certainty pre-purchase then why spend the money? Either look elsewhere, or if it is "must have", be prepared to take a risk. This is not a complaint, everything was explained and transparent.

[QUOTE=Poetica]Our UK based lawyer (mentioned elsewhere on this forum) advised us not to rely on the notaio's searches etc. The lawyer offered a service which comprised a variety of searches and confirmation of exactly the type Charles recommends, but at an astronomical price; something in the order of E7,000 if we took the full package. But when we asked about certainty of information/reports they said they were not able to give 100% assurances. This seems reasonable; how can it be proven for instance that everyone entitled to a pre-emption claim has been notified and dismissed their rights; you cannot prove a negative! The whole point of the exercise is to avoid costly and time-consuming post purchase litigation and if there is no possiblity of achieving certainty pre-purchase then why spend the money? Either look elsewhere, or if it is "must have", be prepared to take a risk. This is not a complaint, everything was explained and transparent.[/QUOTE]

[color=black]Yes, but this is what I mean, there are good and bad in all. Your example of E7,000 is a rip off. I know for a fact that there are good genuine lawyers that charge about a third of the price. Ok, you can not prove a negative but the risks would have been reduced extensively as opposed to not even been taken into consideration as has happened to many. [/color]
[color=black]There are those who have taken the cheaper route and have come out of it smelling of roses and that’s great but if we had continued in the situation we were in without finding a recommended lawyer, it wouldn't be roses we smelt of! :o A dodgy agent with recomendations to use [size=3]their[/size] notary and [size=3]their[/size] lawyer, I don't think so![/color][color=black] :rolleyes: [/color]

[color=black]There are a few stories on the forum of buying gone wrong but not many, probably due to the embarrassment of admitting they where naive like us and it would be inappropriate to name and blame dodgy professionals on a forum anyway. Also, it could detract from all the reasons why we want to buy in [/color][color=black]Italy[/color][color=black] if all the posts where wo is me tales. Sad stories do happen of couples who have lost thousands, I’m just trying to save some heartache for others, it’s their choice which route they take. [/color]
You can not know what you don't know......so I'm telling as much as I do know.......
[color=black]Ciao :)
[/color]

[QUOTE=trullomartinafranca][color=black]This is no reflection on you personally but if this is the essence of what a notary does....how come there are so many stories about pre-emption rights etc gone wrong for the buyers? [/color]

[color=black] [/color]

[color=black]Is it that some notaries not so good as it is the same with some lawyers and some agents? [/color]

[color=black] [/color]

[color=black]Having now experienced some of the mysteries of buying in [/color][color=black]Italy[/color][color=black], it is impossible to know who to trust unless you have received a high recommendation from someone and that you trust them as well. Actually no different than any where else in the world really, just makes it harder if you can't speak a word of their language and have little understanding of their laws. Especially when rules appear to be made to be broken! ;) [/color]

[color=black] [/color]

[color=black]Notaio, we are grateful for your help on this forum and sure that you are totally professional but as a notary you are not acting solely to protect the buyer. Your [color=black]responsibility is to[/color] ensure that the sale is legal, taxes paid and property has been registered in compliance with your country's laws.

[color=black][/color]
[color=black]Also if the buyer used a private contract as opposed to a public contract the notary has less obligation to check pre-emption rights etc.[/color]
[color=black][/color]
[color=black]?[/color]

An independent lawyer would cover house purchase in much greater depth with the sole aim of protecting his/her client, assuming of course that they were professional. [/color]
[color=black] [/color]

[color=black]Please correct me if I am wrong, just trying to make sense of things. :) [/color][/QUOTE]

Weel, this is not a defense of my professional class, so I'm not declaring that all notaries are a sort of legal "supermen" that never commit mistakens, but normally purchases in Italy are a "no problem" affair thanks to the notaries.
The great majority of real estate negotiatons are dealed by notaries, from compromesso to atto pubblico and only a great minority of them are managed by lawyers.
You have to consider the notaio as a sort of solicitor, particularly expert in real estate contracts, BUT NEUTRAL between the parties, not interested to privilege the vendor or the buyer, but careful to ensure the validity of the contract and to [B]prevent litigations[/B],

Charles joseph stressed that before buying anything is necessary to verify
[I]"Ownership and status
Local land registry to check for registered charges or other burdens
The presence of easements or servitù as they are called in Italy
Company searches if buying from a company
Compliancy
Local authority and planning"[/I]

Well, this is exactly the kind of job a notaio MUST do before drafting a purchase contract.
You said that my "[I]responsibility is to[/color] ensure that the sale is legal, taxes paid and property[/I]", but you're wrong, because this is only part of my job.
My responsability, my legal DUTY, is also to protect the buyer from potentially dangerous prurchases and, in the same way, to protect the vendor from irregular payments.

This responsabily doesn't change if the contract is a public contract (drafted by a notary) or a private contract, only authenticated.
In this case the notary doesn't limit his activity to a mere certification of the signatures, but he does all the checks I mentioned before.

You asked:

So if for example at the rogito you discovered that the buyer had no knowledge about pre-emption rights etc or the contract had been badly written between the buyer and vendor what would you do? Cancel the rogito and send them away, to return when all complete or continue

My duty is to give all the legal advices and assistance necessary, but remember the that pre-emption matter doesn't hit the legal validity of the contract.
So if the parties have been fully informed of potentially claims related the pre-emption, but they still wont to go ahead, they are free to sign the contract, if they wont, because the the contract is not illegal.

[QUOTE=notaio]Weel, this is not a defense of my professional class, so I'm not declaring that all notaries are a sort of legal "supermen" that never commit mistakens, but normally purchases in Italy are a "no problem" affair thanks to the notaries.
The great majority of real estate negotiatons are dealed by notaries, from compromesso to atto pubblico and only a great minority of them are managed by lawyers.
You have to consider the notaio as a sort of solicitor, particularly expert in real estate contracts, BUT NEUTRAL between the parties, not interested to privilege the vendor or the buyer, but careful to ensure the validity of the contract and to [b]prevent litigations[/b],

Charles joseph stressed that before buying anything is necessary to verify
[i]"Ownership and status[/i]
[i]Local land registry to check for registered charges or other burdens[/i]
[i]The presence of easements or servitù as they are called in Italy[/i]
[i]Company searches if buying from a company[/i]
[i]Compliancy[/i]
[i]Local authority and planning"[/i]

Well, this is exactly the kind of job a notaio MUST do before drafting a purchase contract.
You said that my "[i]responsibility is to[/color] ensure that the sale is legal, taxes paid and property[/i]", but you're wrong, because this is only part of my job.
My responsability, my legal DUTY, is also to protect the buyer from potentially dangerous prurchases and, in the same way, to protect the vendor from irregular payments.

This responsabily doesn't change if the contract is a public contract (drafted by a notary) or a private contract, only authenticated.
In this case the notary doesn't limit his activity to a mere certification of the signatures, but he does all the checks I mentioned before.

You asked:

So if for example at the rogito you discovered that the buyer had no knowledge about pre-emption rights etc or the contract had been badly written between the buyer and vendor what would you do? Cancel the rogito and send them away, to return when all complete or continue

My duty is to give all the legal advices and assistance necessary, but remember the that pre-emption matter doesn't hit the legal validity of the contract.
So if the parties have been fully informed of potentially claims related the pre-emption, but they still wont to go ahead, they are free to sign the contract, if they wont, because the the contract is not illegal.[/QUOTE]

[color=black]Thank you Notaio,[/color]

[color=black]Very honest and helpful reply as usual, but as you have pointed out there are issues that are not illegal which the buyer would still need to be aware of prior to the rogito. It would be a little late to find this out in the rogito especially as they could still have a devastating affect on the buyer in the future e.g. pre-emption rights, building and renovation issues, personal taxes etc and all the things that Charles pointed out.[/color]

[color=black] [/color]

[color=black]With my limited knowledge on property purchase, language and laws in [/color][color=black]Italy[/color][color=black] I would still need professional advice and a notary would not be able to act on my behalf on the issues so this leaves the need for a lawyer who has been recommended. Could suggest an agent but their knowledge is limited to achieving a sale, well in many cases. ;) [/color]

I think this topic is always going to cause concern for overseas buyers and as already mentioned, no-one wants to be scaremongering about buying in Italy, but when our pre-exemption situation arose I was worried sick !

As I have said, fortunately ours was resolved prior to contract, but I have to re-iterate that had I NOT raised the issue myself with the agent and not used a local independent lawyer ( which was expensive ..but not as much as the UK one !)..it would not have been mentioned .
We simply do not have this situation in the UK. I totally agree with both Notario and Charles that unless you research, research , you would not be aware of this situation.

I wanted to simplify the situation for other buyers, so perhaps you could comment on what we were told.

Our agent had to serve notice that we wanted to buy on 3 neighbours who could possibly have had an interest in the property. Two signed without any problems . But one was refusing to sign but insisitng that they were not interested.
The papers were served on this neighbour any way and we were told that they had 60 days to respond . If they didn't return the papers signed within 60days , then all their rights to the property would be waived. Is this absolutely correct in law ?
(for the record , ours did sign in the end but it delayed us signing the contract while they messed around ! )

We were also told that if the papers had not been served on any intereted parties, they had 12 months to make a claim. Once the 12 months have expired, they have no further claim . Correct ?

I think straightforward answers to these two items would put a lot of peoples minds at rest and also help anyone about to enter into a contract , to know exactly how to check their contract.
Thanks to everyone for their efforts on this.

Some extremely valid points are being made in this debate.

On balance, it is in the buyers BEST INTERESTS to ensure that there are no legal snags prior to entering into a binding contract, which may lead to expensive post purchase litigation if they are not sorted out beforehand.

That notaries are not some kind of legal supermen must equally apply to solicitors, however. I don’t think that it is correct to say that one is better than the other. 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 it will be best to seek the support of a solicitor, whilst in other cases, a Notary will suffice.

For example, I have a client (we carried out a technical survey of the house which he bought through an unlicensed agent) who has employed a solicitor to handle the transaction because there are some very complex legal issues concerning the property. Notaries are very busy people and in fairness, the notary appointed to complete this particular sale had neither the time nor the inclination to sort out the problem. The solicitor handling the case was extremely thorough in ensuring that the buyer’s legal position was protected.

The point made by Trullo highlights an important aspect of impartiality, which to all intents and purposes, is what a notary, as a public official bound by a professional code of conduct (as is a solicitor), has to maintain at all times. A notary cannot represent a client in the same way that an independent solicitor can. That is not to say that work is being taken away from the notary because a solicitor will in any case, work alongside the notary to ensure the transaction is completed without difficulty.

Another interesting point raised by Trullo is that of a number of cases going wrong. Notatio states that part of his duty is to “protect the buyer from potentially dangerous prurchases” (whilst at the same time protecting the vendor and maintaining complete impartiality). This is a tough one! How can you protect a person’s interests and yet be impartial at the same time? This is contradictory to say the least. It also confirms that the basis of this subject is a matter of considerable controversy. Notaries are not infallible (neither are solicitors for that matter) and they cannot give their undivided attention to just one of the contracting parties.

Obviously this presents us with a dilemma. Who do we turn to especially when trying to do all of this from a few thousand miles away? Buyers will need to weigh up the risks involved and decide how best to proceed. This will depend upon the circumstances of the purchase.

Hopefully, the purpose of this forum is not to give biased opinions for or against notaries or solicitors, but to provide people with a framework for making better, more informed decisions about buying a house in Italy.

The problems we so often discuss on this forum are the confluence of a number of factors. Namely:

People getting carried away with the dream of buying a property and falling into a false sense of security

Many contracts that are prepared by the unqualified, containing muddled or misleading legal terms

Buyers being rushed into making a decision

Buyers not asking relevant questions

Buyers handing over money without getting receipts (yes it does happen)

Buyers making false assumptions about their legal position

Many contracts that are often concluded without any proper negotiation of their terms

Many notaries that don’t always have the time to carry out detailed pre-contract searches and enquiries and only provide the very basic of searches

This has nothing to do with scare mongering or causing concern. It pays to be prudent from the start.

Poetica, I think €7000 is a wee bit too much. I see your point about certainty of information and assurances. But a competent practitioner should leave no stone unturned and raise any potential legal issues before you sign on the dotted line. After all, you are committing to a substantial investment and you want to be reassured that your rights are being protected. Overseas buyers should never fall for the “oh we don’t do things this way in Italy” – this is just an excuse.

The law contains provisions that spell out the obligations and liabilities, as well as the protective measures. Buyers need to be aware of what they are. Caveat Emptor should go hand in hand with ignorantia juris non excusat (ignorance of the law excuses no one)!

[QUOTE=alex and lyn]
I wanted to simplify the situation for other buyers, so perhaps you could comment on what we were told.

Our agent had to serve notice that we wanted to buy on 3 neighbours who could possibly have had an interest in the property. Two signed without any problems . But one was refusing to sign but insisitng that they were not interested.
The papers were served on this neighbour any way and we were told that they had 60 days to respond . If they didn't return the papers signed within 60days , then all their rights to the property would be waived. Is this absolutely correct in law ?
(for the record , ours did sign in the end but it delayed us signing the contract while they messed around ! )

We were also told that if the papers had not been served on any intereted parties, they had 12 months to make a claim. Once the 12 months have expired, they have no further claim . Correct ?

I think straightforward answers to these two items would put a lot of peoples minds at rest and also help anyone about to enter into a contract , to know exactly how to check their contract.
Thanks to everyone for their efforts on this.[/QUOTE]

[COLOR=DarkSlateBlue][FONT=Century Gothic]Hey I have passed this query to our solicitor as a mooting point and he was kind enough to respond to both issues in general terms. If anyone is interested in his GENERAL reply, drop me an email (italianlover@hotmail.co.uk) and I will forward you this email.

To summarise, here is the answers:

1) The job of a solicitor and of a notary are very different as the solicitors act on behalf of each party whereas the notary is a government official so he does not give legal advice but just check the validity of the documents from a forman point of view. It is always appropriate to appoint a solicitor to check that your legal interests are best protected as a simple mistake in law will NOT be justified by an Italian Court. In other words, whereas in England the judges have a general power of deciding according to equity, in Italy there is a general principle (quoted below by Charles in Latin!- but everyone in Italy seems to know what it means! :D ) according to which you can not tell the court that you did not know about the existence of a specific rule/regulation/statute/article of civil code etc. etc. because the Judge will not care, he will tell you that you should have known or you should have used a solicitor to explain it to you before signing any contract.

2) There is some specific articles in the civil code which states who you can serve these papers and there are some "requisiti di forma" ( i do not know what this means but surely someone with fluent Italian can help with this! :) ) which MUST be respected or the notice is not valid. One simple mistake or omission and your service will not be valid.

3) the 12 months to make a claim rule is a tricky one as it is not as straight forward as it seems: there is also another post by Julie D where the issue of a pre-emption rights is determined in more details; Julie D is an example of a British buyer being taken to Court by the neighbour because she decided to rely on the estate agent to serve the papers (and not a solicitor), who in turn forgot to do this and now she has been in Court for more than 2 years and she may have to surrender all her land to her neighbours....this thread should be read in conjunction with other threads about under-declaring the price before the Notary in the final Deed of Sale.

As you can see, the process is not as simple as it seems and maybe giving some "straighforward answers to these two items" is not a good idea because the best thing to do BEFORE signing any contract is to seek legal advice: surely if a buyer is willing to pay 3% of the purchase price to an estate agent, they should also be able to budget for legal costs which in any case do not exceed £1500.

[I][B]If people would not even dream about buying a house in the UK without a solicitor, why on earth would they want to do the same IN A FOREIGN COUNTRY where they do not even speak the language, never mind understand the laws? I am somehow puzzled as this issue of "DIY Conveyancing" when buying Italian properties seems to be recurring in many threads of the Legal Forum! :) [/B] [/I]

I entirely agree with Charles Josephs in all of his comments: he is one the senior members in the forum and his advice is always incredibly wise and competent; he is a minefied of information and will always post a response with a lot of details and examples. He is warning buyers about the risk of "relying on estate agents" to get a quick deal, I have heard so many nightmare stories of purchases going horribly wrong and Brits being taken to court and having to surrender their lands for peanuts because they did not have a clue about these pre emption rights...

By the way, I decided to use a solicitor after Charles recommended an excellent lawyer in London and the amount of information which we are receiving by this solicitor (including the long response to my email about the pre emption rights, for which I have not been charged a penny and I will happily forward to anyone wanting some general advice on pre emption rights) is definitely worth the legal costs which we are now paying.[/FONT][/COLOR]

Ours was a lot more than £1500 to sort out all these issues. Often a flat fee is quoted and in the small print you realise that anything over and above basic advise and straightforward contracts is extra. When we were originally going to use a London based solicitor , he was charging £1500 but most of the major issues were not covered in this and would have been extra.
We used a lawyer from this area.

[QUOTE=alex and lyn]Ours was a lot more than £1500 to sort out all these issues. Often a flat fee is quoted and in the small print you realise that anything over and above basic advise and straightforward contracts is extra. When we were originally going to use a London based solicitor , he was charging £1500 but most of the major issues were not covered in this and would have been extra.
We used a lawyer from this area.[/QUOTE]

I don't know what solicitors in London are you referring you, but we are using Giambrone & Law International in London and our fee covers everything and is fixed, i.e. they can not charge me more unless I specifically authorise them to carry out extra work (for taxation,inheritance, etc.)

All the conveyancing is included, not only the drafting of the contracts (proposta di acquisto and preliminary agreements) but also the report on title, pre emption rights, third parties' interest in the property, bank charges against it, etc etc.

Actually, the letter of engagement which we received clearly sets out the activities which are included, and include checking on pre-emption rights if applicable.

All of this is clearly included in this set fee and I was personally reassured by Gabriel that there are no small prints in the contract of engagement of his firm! :D

[COLOR=Sienna]Is there any thread in this forum which explains the fees of the main Italian Law firms in the UK and what is included and what is not covered? It may be interesting to compare prices/estimates and quotes and then maybe add some reviews by existing users who have already completed the purchase about the level of service received?...some food for thought.... :confused: [/COLOR]

Hi Italian Lover,

I wish someone had recommended your solicitor to us when we were buying ...their deal sounds amazing. I have read other posts about this solicitor and it seems he is offering a very good service.

Still ..no good crying over spilt milk...at least we had the sense to use a lawyer and are happy with the outcome . Can't beat the life here and we love our house.... so alls well that ends well ! :)

Let us know when you complete and we'll celebrate. By the way , where are you buying ?

[QUOTE=Poetica]Our UK based lawyer (mentioned elsewhere on this forum) advised us not to rely on the notaio's searches etc. The lawyer offered a service which comprised a variety of searches and confirmation of exactly the type Charles recommends, but at an astronomical price; something in the order of E7,000 if we took the full package. But when we asked about certainty of information/reports they said they were not able to give 100% assurances. This seems reasonable; how can it be proven for instance that everyone entitled to a pre-emption claim has been notified and dismissed their rights; you cannot prove a negative! [/QUOTE]

what UK lawyer (mentioned elsewhere on this forum) would charge £7000 for a conveyancing transaction? This is certainly a rip-off!

even if they applied the hourly rate, and even if they charged you £200 an hour, they would have to justify 35 hours of work in order to charge you that amount!!!

it would be interesting to know how would they justify this astronomical fee? If you shop around, there are other firms that carry out all this work that Charles mentioned for a £1500-1750 fixed fee.

Not sure about John Howell, but both Max Gold and Giambrone & Law surely do (although what is included in the fixed fee varies between these 2 firms so it is always best to obtain a written confirmation of what type of work is included in this fee)

By the way, there is a way of proving the negative: apparently you can serve this notice by registered letter and if the neighbours do not reply within 31 days, there is an assumption in law that they do not wish to exercise their rights of pre-emption.

:rolleyes:

Just to add to Laura's comment about the 31 days, this is called approvazione tacita. However, it is always wise to get confirmation in writing that all of the parties who are entitled to diritti prelazioni are willing to give this right.

I think that this is thread is very useful, because is showing how all the differences between civil law and common law exert influence on a purchaser's mind.
You have to remember that civil law and common law systems are really different, like two separated world, with different languages and dealings.
In common law a purchase contract is like "fight", where the vendor and the buyer have to defend their own interests, so naturally, each party needs a lawyer on "his side", to defend him against the counterparty interests:
it's like a litigation without court.
This happens because of the historical roots of common law system (indipendence from the State, invididualism ) and also for technical reasons: many common law country (i.e. USA, don't know UK) have nothing compared to a public land register, that is a public archive where every people can get informations about real estate, so the enquiry regarding ownership of the vendor often is not based on public certifications, but only on contractual guaranties.
In this system a neutral "third party", who takes care of the contract, giving advices and finding legal solution useful for both party has no sense

All the eventual arising problems about the regularity and legality of the contract will be resolved by judges in post contractual litigation.

In the civil law system the State charge some public officials (that are not public employees but professionals) to take care of some contracts particularly important (real estate, mortgages, company etc) to ensure their validity, in order to prevent post contractual litigation.
In this system a notaio (or a notar in Germany, a notaro in Spain, a notaire in France and so on) must inquire the wishes of both parties, giving them all legal advices necessary in order to "sew a legal dress" for the contract they wont to sign, protecting the legality of the deal.
For this reason, the system imposes many duties on notaries.
I wrote in other threads about this, so I won't repeat, because I don't wont to become more boring than I already am.

I'm not saying that civil law is better or worst than common law, but this is the system you have to deal with in all continental Europe and many other countries all around the world.
In Italy it seems to work: here post contractual litigation in purchases is 0,2x1000, in USA is 50 times higer

[QUOTE=Laura72]what UK lawyer (mentioned elsewhere on this forum) would charge £7000 for a conveyancing transaction? This is certainly a rip-off!

even if they applied the hourly rate, and even if they charged you £200 an hour, they would have to justify 35 hours of work in order to charge you that amount!!!

:rolleyes:[/QUOTE]

It would indeed be very easy for a lawyer to run up 35 hours of work, or indeed many times more than that, in creating a valid contract for their client!
In Italy, there are often complications involving subdivision of land, inheritance, mortgage and bankruptcy issues and illegal (or barely legal) additions and changes to houses. In the UK and America, where houses may change hands every few years and most are cookie-cutter houses on single plots of land, the legal issues are straightened-out the first time the house is sold then subsequent sales involve little more than rubber-stamping the contract. In Italy, the kind of houses we foreigners like to buy often involve difficult problems of ownership and rectifying changes of use at the Land Registry. For such houses, these fees are an intrinsic part of the cost of buying the house and should be borne in mind when you make an offer. In other words, the 'cleaner' the legal status of the property is, the more you should offer and vice-versa.

P.S. I was tickled to read, about Charles Joseph, that....

[QUOTE=Italianlover][COLOR=DarkSlateBlue][FONT=Century Gothic]
"...he is a minefied (sic) of information" [/FONT][/COLOR][/QUOTE]

Thank you notaio and others for this interesting and enlightening thread!

One point, in the US the public records do allow for anyone to check out property records. Unfortunately, the public property records are often incorrect
and are only corrected (if someone goes through the trouble) when a property is sold and goes through an escrow.

[QUOTE=Laura72]what UK lawyer (mentioned elsewhere on this forum) would charge £7000 for a conveyancing transaction? This is certainly a rip-off!

even if they applied the hourly rate, and even if they charged you £200 an hour, they would have to justify 35 hours of work in order to charge you that amount!!!

it would be interesting to know how would they justify this astronomical fee? If you shop around, there are other firms that carry out all this work that Charles mentioned for a £1500-1750 fixed fee.

Not sure about John Howell, but both Max Gold and Giambrone & Law surely do (although what is included in the fixed fee varies between these 2 firms so it is always best to obtain a written confirmation of what type of work is included in this fee)

By the way, there is a way of proving the negative: apparently you can serve this notice by registered letter and if the neighbours do not reply within 31 days, there is an assumption in law that they do not wish to exercise their rights of pre-emption.

:rolleyes:[/QUOTE]

Laura - the fees we have paid are iro Euro 7,000 not sterling. The basic fee of £1500 or so covered no more than the lawyer in the UK could accomplish working from a distance and using dox supplied by the property agent. To carry out searches etc was another Euro 2500 for a local associate and a further Euro 2000 for assistance/representation by another associate up to and on the day of the atto. With other disbursements you can see how it mounts up.

With respect, in your example you have not proved a negative. It's fine if you identify all the potential claimants, but how do you know you have done this? There is always the possbility that the fourth brother entitled to farm the land appears out of left field to make his claim, even though you have diligently served the other three and got their responses. That's the negative you cannot prove, you have to take on trust that the vendor has identified all possible claimants if, as I undertand it, there is no absolute/formal record of the coltivatore diretti. Yes, you can consider post completion litigation but, frankly, who wants to get into that??

Having bought property in UK and France without using lawyers I get the impression that using one in Italy is equally useless. Do Italians use them? Is the existence of third party rights the main problem? If so I would think that the notary is more likely to be aware than anyone. A chat with your prospective neighbours (which the lawyer will not do) is likely to be the best way.

[QUOTE=cardi]Having bought property in UK and France without using lawyers I get the impression that using one in Italy is equally useless. Do Italians use them? Is the existence of third party rights the main problem? If so I would think that the notary is more likely to be aware than anyone. A chat with your prospective neighbours (which the lawyer will not do) is likely to be the best way.[/QUOTE]

Try telling that to the member of this forum who is in danger of losing their land because the Notary didn't sort out the pre-emption and they didn't use a solicitor[img]http://www.italymag.co.uk/forums/images/smilies/frown.gif[/img] . Our lawyer did contact the neighbours - and try talking to the registered owner who has been dead for a number of years[img]http://www.italymag.co.uk/forums/images/smilies/eek.gif[/img] ! and then trying to track down their family. You do it yourself at your own risk - some of us are a bit more risk averse. Perhaps you should read some of notaio's comments on this forum.

[QUOTE=cardi]Having bought property in UK and France without using lawyers I get the impression that using one in Italy is equally useless. Do Italians use them? Is the existence of third party rights the main problem? If so I would think that the notary is more likely to be aware than anyone. A chat with your prospective neighbours (which the lawyer will not do) is likely to be the best way.[/QUOTE]

If a person wants an extra garantee for his safety, he is of course free to ask for the professional help of a lawyer and has to pay him/her.
I just can say how the system works in Italy:
[B]people normally don't use lawyers[/B]
It's VERY rare for a lawyer to handle with real estate purchases.
People usually entrust this matter to notaries, for the reasons I've talked all around the forum.
This is not because lawyers are not able to do that, but essentially because notaries have more specific preparation, more practice and offer more garantees.
If a person wants to buy an house he goes to a notary for advices and counsellings, not to a lowyer.
It doesn't mean that a lawyer is never used, but when it happens it's often because between the purchase parties thare has been same kind of litigation and the purchase is the way to solve it.
I give you soma data:
in my experience I draft no more than 10 purchases [B]per year [/B] dealed by a lawyer, and I draft on an average of 4 purchases [B]per day[/B].

[QUOTE=notaio]I give you soma data:
in my experience I draft no more than 10 purchases [b]per year [/b]dealed by a lawyer, and I draft on an average of 4 purchases [b]per day[/b].[/QUOTE]

How many of the 4 per day were overseas buyers with little understanding of the legal system and language?
Also, if the Notary can deal with all the issues a lawyer can, how is it that some buyers still end up with pre-emption rights problems [b]after[/b] they have purchased the property - does this mean the Notary has not done their job properly[img]http://www.italymag.co.uk/forums/images/smilies/confused.gif[/img] ?

[QUOTE=Marc]P.S. I was tickled to read, about Charles Joseph, that....[/QUOTE]

Marc..

I'm equally tickled to read you comments.

[QUOTE=brendangfc]How many of the 4 per day were overseas buyers with little understanding of the legal system and language?
Also, if the Notary can deal with all the issues a lawyer can, how is it that some buyers still end up with pre-emption rights problems [b]after[/b] they have purchased the property - does this mean the Notary has not done their job properly[img]http://www.italymag.co.uk/forums/images/smilies/confused.gif[/img] ?[/QUOTE]

question a)
little understanding of the legal system is not a prerogative of overseas buyers: people usually don't deal with legal matters, that's the reason why there are legal professional;
question b)
In the last week the foreign buyers were:
2 from Morocco
1 from Macedonia,
2 from Argentina
1 from Germany
1 swiss company.
The first 5 were immigrants, so may be you couldn't consider them as "overseas buyers" but they surely had poor understanding of italina language and legal system
question c)
Many of the problems related the pre-emption rise from the "declared price".
People declare a price lower than real and so the neighbouring is tented to challange the purchase
A notary must advice of this risk and if he does not do that; he is personally responsable
I am noy saying that notaries are perfect but it does not change the terms of the question: IN ITALY PEOPLE DO NOT USE LAWYER WHEN THEY WANT TO BUY A HOUSE

[QUOTE=Charles Joseph] ........... you are committing to a substantial investment and you want to be reassured that your rights are being protected. Overseas buyers should never fall for the “oh we don’t do things this way in Italy” – this is just an excuse.[/QUOTE]

[QUOTE=Notaio] ... It's VERY rare for a lawyer to handle with real estate purchases. People usually entrust this matter to notaries, for the reasons I've talked all around the forum. This is not because lawyers are not able to do that, but essentially because notaries have more specific preparation, more practice and offer more garantees. If a person wants to buy an house he goes to a notary for advices and counsellings, not to a lowyer......... I am noy saying that notaries are perfect but it does not change the terms of the question: IN ITALY PEOPLE DO NOT USE LAWYER WHEN THEY WANT TO BUY A HOUSE [/QUOTE]

Hmmm! interesting juxtaposition of opinions. How do we mere mortals figure out the right answer. I guess it's largely down to the type of purchase; if it's an old rural property with land apportionment issues etc probably best to opt for independent representation. If it's a less 'complicated' purchase of a newer established property you can perhaps rely on the notaio to spot the obvious pitfalls and point them out.

From what I have been reading on these forums and elsewhere I would think that the chances of having a legal problem with a purchase are the same, whether or not you have a lawyer. If the notary by any chance messes up your purchase he is equally as indemnified as a lawyer, perhaps more so, would that be right notaio? What additional benefit do you get? There is a lot of money to be made from brits buying property and being persuaded to use the UK system, however inappropriate it might be in Italy. Look to who benefits.

[QUOTE=cardi]From what I have been reading on these forums and elsewhere I would think that the chances of having a legal problem with a purchase are the same, whether or not you have a lawyer. If the notary by any chance messes up your purchase he is equally as indemnified as a lawyer, perhaps more so, would that be right notaio? What additional benefit do you get? There is a lot of money to be made from brits buying property and being persuaded to use the UK system, however inappropriate it might be in Italy. Look to who benefits.[/QUOTE]

The benefit (as explained to me by my expensive UK lawyer) is to flush out problems of land registration, building irregularities, attached debts, pre-emption etc before you have committed yourself in the compromesso. It's hard to disagree with this. It would be interesting to hear from any forum member who has discovered problems and either tried/succeeded in voiding the compromesso or atto after a failure on the vendor's part to meet the terms of the contract. I think the issue for many people is, what is my remedy if things go wrong? (and how simple is it to pursue?). In my experience Italians lay great store in the caparra and the notaio as complementary guarantees, but just suppose your vendor did not disclose an unapproved building alteration before the atto is signed; is it a simple matter to void the contract and get your funds returned (with 2 x deposit!). I'd be willing to bet the matter would suffocate under the weight of legal process. Please prove me wrong.

This is becoming a fascinating debate and I believe it certainly helps sustain the argument that if Europe is to be economically unified into a single market, the laws will have to be unified as well.

The difficulties associated with the substantive differences in various jurisdictions across EEC Member States are far too important to ignore and that is why a special Commission was formed some years ago to investigate the possibility of harmonising many of the laws. Despite the fact that some of the legal systems are irreconcilable, it would make sense to make them simpler and more transparent.

I was interested by Notaio’s thread regarding Common and Civil law and the gaps that exist between the two systems, even more so when this very subject was one of the hot topics on the agenda at the Congresso Nazionale del Notariato in Pesaro held on the 18-21 September; the core theme being: Civil Law – Common Law. Sviluppo economico e certezza giuridica nel confronto tra sistemi diversi.

Although the community of professional notaries is a powerful one, this walled enclosure is coming under attack from some quarters because it is being accused of restricting rather than encouraging competition (libero concorrenza) among potential candidates. In fact, some legal experts even want to see the role of the Notary (as it is known throughout most Latin countries) brought in line with the Common Law system and since such a move has the propensity of reducing the notary’s repertoire of tasks, it should come as no surprise that alarm bells are beginning to ring.

With regards to prelazioni, the real problem, I believe, stems from the fact that a notary appears to be under any no obligation to check but only to advise a buyer about the potential risks associated with pre-emption. When the notary asks the vendor if there are any rights of pre-emption and whether these shall be given up, the vendor can of course say no. By advising the buyer of any potential risks, the notary has done his/her duty, but this is by no means an absolute guarantee. Yes, the notary would be liable in damages if he/she was unable to provide the proper advice, but this still doesn’t solve the buyer’s problem, as is evident from what happened to JulieD.

It is still in the buyers’ BEST INTERESTS to ensure that there are no legal snags prior to entering into a binding contract. Why should anyone bind himself or herself without seeking the advice of a legal professional? The question whether to use a Solicitor or not is a matter for the buyer to decide.

Simply stating that “IN ITALY PEOPLE DO NOT USE LAWYER WHEN THEY WANT TO BUY A HOUSE” can hardly be held as a valid argument and is not entirely convincing. After all, Italians (most of the European countries cited in Notaio’s list have their juridical systems based on Roman law principles) are generally aware of their own system, and only where parties operate within the same national jurisdiction is a level playing field assured.

Notaio, I don’t think there is a risk of you becoming too boring. If you believe that you are doing yourself an injustice; your contributions to forum are important and valid. But I do detect, however, a defensive content in some of your recent answers and I suspect that this is due to the fact that your profession is starting to feel the effects of greater competition from other legal professionals, who are able to provide a wider and more comprehensive range of services.

In any case, if my clients want to use a solicitor, I am in no position to convince them otherwise...and to be prefectly honest, I've heard no complaints from the Notary who has been appointed to handle their completions.

To my mind, the whole issue of pre-emption rights is a very delicate matter that goes well beyond simply sending letters to the neighbouring farmers before signing the dotted lines. There are many factors that need careful consideration and perhaps it can sometimes make sense to take a calculated risk reducing the probability of somebody exercising their right.

A good professional will do lots of legwork and talk with the neighbours to get an informal insight to the happenings in the area without appearing too nosey. It often transpires that some of the neighbours in the area are already undergoing furious legal battles of one sort or another, be it boundary definition, usucaption or inheritance … this should certainly trigger an alarm, especially being a “foreigner” where they can easily take a disliking for many trivial reasons.

There is also a very “human” element about this process that should never be underestimated where the spirit of the law is to give those who have worked the land all their lives the possibility to grow.

Having said that, during the pre-emption screening I tend to take the following approach:

- Have a chat with the locals and find out what the neighbours do for a living (teachers, shop keepers, factory worker etc) Such chats often start off talking about the weather and quickly lead to valuable information. Remember in rural areas, neighbours are always curious and striking up a conversation is generally pretty easy.
- Look at the surrounding land plots to see how well they are maintained. You can tell at a glance who might be keeping their eye on you throughout the buying process.
- Find out about the potential candidates … are they respected citizens, hard working and honest or somewhat shady characters. Have they exercised their pre-emption rights elsewhere in the area. Do they have money or are they in difficulty in making ends meet?
- Approaching the neighbours can often be a simple affair but can also lead to unforeseen complications. Some may ask for a concession ... a right of way, a strip of land, draw water from a well, others ask for cash payments and others will invite you in for a coffee and welcome you to the area!!

Some other questions worth asking …
- What are you planning on declaring as a price for the land. What commercial value has such land in the area. What declared price will you attribute to the land to make it a potential bargain or commercially very unattractive?
- Are you simply trying to reduce the 18% taxes on the land by under-declaring? Is saving 1000 to 2000 euro really worth it … do you really want to lose lots of sleep?

There are no generic rules regarding pre-emption issues … every case tends to be unique. Even the definition of farmer for pre-emption (coltivatore diretto) is somewhat ambiguous!!

I guess my point is … do you send out the letters (risk that the purchase will fall through … a real soul-destroying experience after months of searching and negotiating) or when do you go ahead hoping for the best (that dreaded letter 6 months later… a real traumatic experience). I think both scenarios need to be carefully assessed and a decision made on a calculated risk. After all, isn’t coming to Italy a risk in itself!!

David
[url]www.ourtoscana.com[/url]

[QUOTE=Charles Joseph]This is becoming a fascinating debate and I believe it certainly helps sustain the argument that if Europe is to be economically unified into a single market, the laws will have to be unified as well.

The difficulties associated with the substantive differences in various jurisdictions across EEC Member States are far too important to ignore and that is why a special Commission was formed some years ago to investigate the possibility of harmonising many of the laws. Despite the fact that some of the legal systems are irreconcilable, it would make sense to make them simpler and more transparent.

I was interested by Notaio’s thread regarding Common and Civil law and the gaps that exist between the two systems, even more so when this very subject was one of the hot topics on the agenda at the Congresso Nazionale del Notariato in Pesaro held on the 18-21 September; the core theme being: Civil Law – Common Law. Sviluppo economico e certezza giuridica nel confronto tra sistemi diversi.

Although the community of professional notaries is a powerful one, this walled enclosure is coming under attack from some quarters because it is being accused of restricting rather than encouraging competition (libero concorrenza) among potential candidates. In fact, some legal experts even want to see the role of the Notary (as it is known throughout most Latin countries) brought in line with the Common Law system and since such a move has the propensity of reducing the notary’s repertoire of tasks, it should come as no surprise that alarm bells are beginning to ring.

With regards to prelazioni, the real problem, I believe, stems from the fact that a notary appears to be under any no obligation to check but only to advise a buyer about the potential risks associated with pre-emption. When the notary asks the vendor if there are any rights of pre-emption and whether these shall be given up, the vendor can of course say no. By advising the buyer of any potential risks, the notary has done his/her duty, but this is by no means an absolute guarantee. Yes, the notary would be liable in damages if he/she was unable to provide the proper advice, but this still doesn’t solve the buyer’s problem, as is evident from what happened to JulieD.

It is still in the buyers’ BEST INTERESTS to ensure that there are no legal snags prior to entering into a binding contract. Why should anyone bind himself or herself without seeking the advice of a legal professional? The question whether to use a Solicitor or not is a matter for the buyer to decide.

Simply stating that “IN ITALY PEOPLE DO NOT USE LAWYER WHEN THEY WANT TO BUY A HOUSE” can hardly be held as a valid argument and is not entirely convincing. After all, Italians (most of the European countries cited in Notaio’s list have their juridical systems based on Roman law principles) are generally aware of their own system, and only where parties operate within the same national jurisdiction is a level playing field assured.

Notaio, I don’t think there is a risk of you becoming too boring. If you believe that you are doing yourself an injustice; your contributions to forum are important and valid. But I do detect, however, a defensive content in some of your recent answers and I suspect that this is due to the fact that your profession is starting to feel the effects of greater competition from other legal professionals, who are able to provide a wider and more comprehensive range of services.

In any case, if my clients want to use a solicitor, I am in no position to convince them otherwise...and to be prefectly honest, I've heard no complaints from the Notary who has been appointed to handle their completions.[/QUOTE]

I agree Charles, this thread is becoming more and more intriguing.
I do not think that lawyers are useless or are not capable to deal with real estate contracts: it's a matter of specialization, because notaries have more experience and more specific culture [B]in this field[/B] than lawyers.
About my statement that in Italy people do not use lawyers when are going to buy an house, it could sound rude, but it was an answer to a question asked on the thread.
This is not an opinion, but a fact: statistically, are really few the purchases dealed by lawyers.
In Italy there is nothing compared to the american "real estate lawyer", that is a lawyer with [B]specific[/B] skill in real estate contracts.
This doesn't mean that I feel myself offended if I have to cooperate with a lawyer (it would be stupid), but, as I wrote, this happens essentially when between the parties there has been some kind of litigation.
I totally agree with you when you say "Why should anyone bind himself or herself without seeking the advice of a legal professional?", but in Italy normally people ask this advice to the notary.

About overseas buyers, I understand that they feel more confortable if they are assisted by a lawyer who hepls them to understand all the differences between the legal systems, it risks to become a waste of money if the lawyer have to do the same job the notary will do: searches about problems of land registration, building irregularities, attached debts, pre-emption etc.

Moreover, it seems to me that this job made by lawyers is quite expensive, as showed in this thread.

About pre-emption, it is a very specific field and many of the problems rise for fiscal reason (declared prices) and from the scarce precision of the law: who is a "coltivatore diretto": an investigation about the neighbouring is always very complicate, because is not based (only) on documents, but also on "de facto" situations, as Poetica correctly pointed out.

About common and civil law, I agree that this will probably be a battlefield among economic systems in Europe, meanwhile we have to deal with the system we have.

Last point, I don't feel defensive, does it seem so?

If I could just say this - from a completely emotional point of view - I have been reading all the posts in this thread with interest and the thing that stands out for me is the way that the English mindset (make it legally watertight) differs from the Italian thought process (piano, piano).

I'm not saying either one is better than the other - just that they are different - and that is what makes it interesting

Lesley

[size=2]Hello again Notaio,
Sorry, I'm not giving you the third degree, I'm just trying to understand the whole issue of notary compared to a lawyer. If I explain our story maybe you will understand from our point of view how difficult it is for some of us to go through the purchase of a property in Italy. We are not alone in this situation, there are many. My husband and I do not speak Italian at all or knew anyone that could speak Italian so we went through an English/Italian agency. The property is a small renovated Trullo.
You have to remember we were reliant on our agent telling us the truth.We were told:
They were fully qualified registered agents and if they did not comply to the law they would be in trouble.
That declaring below the actual price paid is perfectly normal and will save you money.
Could not, would not tell us how much the total cost would be including tax’s and Notary fee.
Would not for many weeks tell us the contact details of the notary, geometra.
The notary could not speak English and we could not find one that did.
We were not aware that we could gain advice from a notary before signing anything and even if we did we can not speak Italian.
That a toilet in the kitchen is not a problem because when the Trullo was built they didn’t have planning regulations.
That converting animal pens to accommodation would not be a problem at all.
That building a bathroom would not be a problem at all.
That a public deed is an old law that is not used anymore and that all their properties are sold by private deed.
That damp does not rise but falls from the sky!!
That it didn’t matter about the neighbours getting them to sign papers, it did not mean anything.
We were led to believe that a notary checks the details given and nothing more and that the only time we would meet would be at the completion.
I could go on but hopefully you get the idea. The point being, we were very aware that not everything made much sense to us and we needed professional advice.
We were in a situation in a foreign country that we didn’t understand. We felt that we could not trust our agent so how could we trust a Notary and in fact were also unsure about trusting a lawyer. I have previously had dealings with some pretty useless English lawyers.
We felt that our only option was to find a lawyer that we could trust, that would give the time to sort out our situation.
In retrospect it could be said that we should have put more effort into researching the subject but we thought we had done so and work commitments leave us with very little time.
Hope you can make sense of this, as it is very difficult to relay the whole situation.
What I am asking is, in your capacity as a Notary would you have given this time and attention in ensuring that what we are buying was not going to result in problems for the future. I appreciate that nothing in life is 100%

Thank you
[/size]

Hi Trullo, it's not a third degree...
I understand your feelings and I've already said about overseas buyers, that a lawyer can help them to understand all the differences between the italian and uk legal systems.
In your specific case, it seems to me that you had a bad counseil from your agent and did not look for legal advice, except in the end.
This is a common problem to overseas buyers: they entrust to agents that, with good exceptions (this is for you Charles :cool: ), are not very competent in legal problems.
You have to remember tha a real agent has a main goal: [B]to sell the house[/B].
He'll often tempted to minimize all the possible problems related to the purchase and so: the building permissions are not a problem, there are no pre-emption rights, the notary will only certify what we've already decided, so it's not necessary to spek with him and so on.
In my experience things go generally fine, but I also face with experiences like those you had and often I have to stop or postpone the contract since the prblems are solved and everything is cleared.
Right now I'm writing instead of "drafting", because I've had to cancel an "atto", since there were irregularities in building permissions: the agent was sure everything was ok, but when we've checked the documents we found that the the house had 2 rooms more, apparentely never authorized.

[size=2]Thanks again, Yes we fully realise that the purpose of an agent is to sell houses, which is why we needed professional advice from someone who can speak English that we could trust.

The point I'm trying to get across is:

No where in our research did we find any information saying that we could have gone to a notary to advise us of all the issues, plus we have not found any recommendations for a notary, whereas we have for a lawyer. The only information found about notaries implied that they searched for the legal requirements in order to register the transaction and that was all and that the only communication was at the atto publica

Assuming we found a notary that could speak English and with the number of things we needed to clarify and understand would a notary be at the end of the phone or email to answer all these questions. This would not be just one quick call but many! Do you give this much time?

If we could have received the same depth of service, communicating backwards and forwards for months, from a notary as a lawyer then yes you are probably right that a lawyer is not needed.

But we do not know any notaries, can not speak Italian, which with our limited understanding of the whole process would have made this very difficult.

Hence the use of a lawyer that works in the way we understand and we can trust.

Hope you can understand this from our point of view.

Thanks again
[/size]

The notary by law is impartial and oversees the sale informing the buyer and vendor where appropriate. I'm not sure that this would be the case if they interact constantly with one of the parties from the word go (and frankly speaking I don't think they have the time). A lawyer will look after your own interests which may or may not be to the vendors advantage.
Many of the issues that arise out of property sales are of a complex technical nature where there is a some sort of non-compliance. This then becomes the job of an architect, engineer or geometra who is also well versed in property law with the right experience. I don't know of too many notaries or lawyers that actually visit the property ... detecting the real problems that the potential buyer may have to live with for good!

David
[url]www.ourtoscana.com[/url]

I agree with David.
Many of the problems that Trullo stressed (but her exeprience is just an example of a general problem) were not related to legal matters, but essentially to techincal one.
In this cases, a good geometra or architect or engineer would do a better job than a lawyer or a notary.

It is good to see other members participating in this debate, especially when each of the views exchanged here contain valid points

To answer the question of diversity, my own view is that the basis of any branch of the law is subject to a great deal of controversy and when you consider that most property and contract laws are so convoluted is it any wonder that overseas buyers are confused?

The real issue here is not about which legal system is right or wrong, or which legal professional one should turn to, the central theme is about being prudent and about managing risk.

There’s a lot of sense in what David says but in many cases it is impractical for a buyer to do the things listed and yes, a good professional real estate agent will indeed do lots of the legwork for you, but as Trullomartinafranca points out, this is not always the case because many agents just want to make a quick sale without the hassle. As I’ve said previously, there are, alas, a number of rotten apples in the barrel: especially agents/brokers without operate without licences and other individuals masquerading as real estate and building specialists who see overseas buyers as polli da spennare!

Getting carried away by the dream carries potential risks and people still need to be careful. I agree with David that each case is unique. There is no such thing as a standard purchase and whether you are buying an apartment in a condominio or a derelict, rural property, each situation will have its own set of quirky and sometimes complex issues that will require remedial action prior to entering into a binding contract. I also agree with both David and Notaio that in some cases an architect or Geometra will be needed to sort out any pertinent technical issues. But these too are not infallible and in some cases have been known to give poor or completely wrong advice.

Both the firm of London-based Italian solicitors as well as the lawyer in the Marche I work with are extremely competent and highly professional and I have no hesitation in recommending their services whenever they are needed.

Together with the notary I work with, we all see ourselves as part of a team whose aim is to ensure that a sale is completed to the satisfaction of all parties involved. We would all be failing in our duty to clients if we neither clarified the differences relating to the interpretation and performance of their contract, nor provided them with guidance and advice on potential liabilities that could expose them to unnecessary risk.

Notaio, I had to laugh the other day when I saw a news report on television about EEC laws concerning the packaging of goods. Looks like some bureaucrat has completely missed the point about harmonisation!

I have dealt with solicitors who advertise in books and magazines
Please be careful when choosing a freind-maybe they are only/

repeat
ONLY interested in their own profit
I was ripped off -it cost alot less than lawyers fees and I know who did it!
Beware uk based lawyers whether buying in Spain Italy or elsewhere or accept high fees without assurances....!do not be as naive as me..think hard ..will this solicitor be working for me or just himself

We are doing the Rogito on our propery in Dec.

I attended the compromesso and met the 7 vendors who all have a share in the property.The notary did raise a question about 1 and asked her to produce certain papers before the Rogito would be signed.the vendors were all the children of the original owneres all pensioners and living nearby.
Attached to part of our house is another property not lived in for years but owned by an eldery couple known to our geometra.I have asked my agents to let me have the proof that they are not direct coltivators before I sign.I met the vendors at the house before I signed the compromesso and they were full of information and very pleasant.One is offering to help us out with some building work.Our geometra is the vice-mayor of our comune .

We have not employed a lawyer having been assured that in Italy Notaois handle the contracts and most houses are bought without using a lawyer.!Also as our total buget was under £60,000 we just could not afford it.

This forum scares the hell out of me and I hope to be able to let everyone know that our house sale was plain sailing this time next year.Either that or I will know that everything said here is true . :(

Just another thought that it would be very easy for 'interested parties' to make use of a forum such as this to panic people into taking certain steps if they thought that house buying in italy really is as prone to disaster as it appears here.Or is that too silly for words? :rolleyes:

true.. it is scary when you hear all the bad stories and hopefully and most probably yours will go thru without problems....

i think all of us here that post have a certain roll... questions asked help others format their way of doing things... help offered for whatever reason can start an idea off....

true most italians will not use a form of legal help outside the agent/geometra/notary circle and in a sense there is an obvious reason...most italians buy in their own locality...and in abruzzo this can be a hundred kilkometers or more...because they have relatives that know everyone and everything...they have uncle/children that are geometras/agents... they have neighbours that know this or that...all these facilties of local knowledge are in general available to those of italian origin....

so take advice where you can.... if you do not have the advantage of a life a family or several well connected friends maybe it is better to pay....

geometras and mayors...vice or otherwise often go hand in hand ...dont forget another contribution into the local economy is always useful....so am not saying you have to worry but in england would you trust your local politico to do the right thing if he was advising you on something self serving.... i doubt.... so why do you think that will work here.. sorry to add to your scare quotient but really if you dont want the answers dont ask the questions