Conformità legale

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Before buying a property in Italy it is very important to verify and certify the conditions relating to a number of legal areas.

Just to give a few examples, this page discusses the three issues of "right of pre-emption", "easements" and "pending litigation".

First we will clarify the meaning of right of pre-emption, also called "right of first refusal", and its potential effects on real estate transactions.

The right of pre-emption concerning real estate sales exists when a physical or legal person holds the right to be preferred over others, under the same conditions, as purchaser. The right of first refusal gives its holder privilege and preference over other parties, on equal terms, once the legal transaction of the sale is commenced.

For this reason it is of fundamental importance to verify and certify before the purchase that there are no rights of pre-emption on the property that you are buying.

In Italian civil law, the right of pre-emption may be of a legal or voluntary nature. The "legal right" of first refusal occurs in all those cases where one or more provisions of the Italian Civil create such rights.

For example, in the case of a real estate purchase including property registered in the Lands Cadastre (i.e. an area of land or a building), the owners adjacent to that property, if they have the status of direct agricultural growers, will be recognised the "right of agricultural pre-emption", thanks to Article 8 of Law 590 of 1965 and subsequent amendments. The legal right of pre-emption also occurs in the presence of tenants in a property subject to purchase. This particular right of first refusal is regulated by three fundamental articles of the Italian Civil Code: Article 38 of Law no. 392 of 27/07/1978, Article 3 of Law no. 431 of 09/12/1978, and finally by Article 3 of Decree Law no. 351 of 25/09/2001, converted into Law no. 410 of 23/11/2001.

A further example of the legal right of pre-emption is that of the case of co-heirs, occurring in cases of the passage of a property to more than one heir a deceased, as regulated by Article 732 of the Civil Code.

The voluntary right of pre-emption is different, in that it occurs in those cases where the property in consideration is burdened by a right of pre-emption, established, at some point in its history, by a formally negotiated agreement between parties. In fact for many reasons, the persons who were once the owners, sellers or buyers of a property, including in the distant past, may have established a right of first refusal which can still exist in favour of one or more subjects.

Given all the above, unless there is a careful assessment of all past acts, which can only be carried out by a qualified team, the person who buys a property could run into serious legal problems that would see them involved in years of legal disputes, with uncertain outcomes. During this time the purchased property would remain in a kind of legal limbo, perhaps requiring the resort to expensive compromises to emerge from the situation, all occurring because of a careless purchase.

Having clarified the problems that may arise because of the right of pre-emption, we can now discuss the issue of "easements".

In the Italian legal system, a property may be subject to a particular form of right held by third parties, known as an easement.

Just to mention a few examples, Article 1027 of the Civil Code establishes the right of easement for the of enjoyment of a "predominant estate": a property belonging to someone else, of which the owner is then allowed certain uses of the property in consideration. Article 1028 of the Civil Code also provides for the notion of easements for useful purposes, for example for the movement of third parties from one property to another, and across the owner's property, for reasons of convenience or "amenity".

Certain easements can be "forced" or "legal", on the basis of Articles 1032 to 1057 of the Civil Code and some special laws on the subject. The establishment of this type of easement is totally independent of the owner's will. The legal system will in fact rule in favour of all those cases of a third party who demonstrates the right to establishment of an active easement, imposed on a neighbouring property, in order to meet a useful and necessary purpose of public or general character, meaning that the easement is also considered "necessary".

Basically, when you purchase a property encumbered by any kinds of easement, these must be evaluated with extreme care. The danger is that third parties could freely pass through your property without you being able to legally or physically prevent them from doing so, and there are many cases in which this situation can occur. The last of the three legal areas we will discuss is that of "pending litigation", consisting of any civil or tax law disputes that could affect the real estate you wish to purchase.

A property can be the subject of legal disputes for a wide range of reasons. Just to give a few examples, a neighbour may have engaged a lawsuit for issues relating to the borders of the property, or for the passage of utilities from one property to the next, or concerning common spaces or uses. There may also be legal disputes about inheritance, or the rights of other kinds of third parties.

Another kind of pending litigation potentially involving the real estate that interests you, is that enacted by the State Revenue Agency.

In short, there are many aspects requiring the performance of an accurate assessment, certified following scrupulous due diligence, in order to exclude any past or potential problems, even if these are not apparent, and to prevent the occurrence of situations which would regrettably involve your new property.

Our certification, following verification of the above, will avoid any kind of problem, unwelcome surprise or dispute, before, during and after the purchase of your new property. And it will save you from long, exhausting and expensive legal proceedings in Italy, allowing you to benefit from absolute peace of mind and the pleasure of your new purchase.

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