Law on Real Estate in Italy

An Expert's View about Law and Compliance in Italy

Posted on: 11 May 2012

Law on Real Estate transaction in Italy

Via Lazzaro Palazzi, 6 STUD 20124 MilanoIO LEGALE T (39) 02 20569315 ASSOCIATO F (39) 02 20569319 C I V I L L AW May 9, 2012 FIRM ARTICLE ITALIAN LAW ON REAL ESTATE 1.1 Laws governing real estate in Italy. Real estate matters are fundamentally regulated by the Civil Code. 2.1 Legal restrictions on ownership of real estate by particular classes of persons (e.g. non-resident persons) There are no specific restrictions imposed to particular classes of persons. A non-EU citizen is allowed to purchase real estate in Italy, provided that Italian citizens are granted the same right in their country (principle of reciprocity). 3.1 What are the types of rights over land recognised in Italy? Are any of them purely contractual between the parties? The types of rights over land (rights in rem) are only those expressly provided by the law. The rights are the following: - ownership right, which gives the holder the absolute ownership and right of use; - “diritto di superficie”, vaguely comparable to a building lease; - “enfiteusi”, similar to a long lease; - “usufrutto”, which gives the holder a right of limited duration on the property of another; - “uso” and “abitazione”, which are similar to the “usufrutto”, but with more limited rights for the holder; and - easements. All the types of rights mentioned above are rights in rem, enforceable against any third parties. In addition, the parties may create purely contractual rights over land, which, in principle, are effective between them and not enforceable against third parties (principle of privity of Via Lazzaro Palazzi, 6 STUD 20124 MilanoIO LEGALE T (39) 02 20569315 ASSOCIATO F (39) 02 20569319 C I V I L L AW contract). Lease agreements are the main contractual instruments which are generally used to allow a third party to use the property of another, against payment of a rent. 4.1 Land Registry in Italy. What land (or rights) are unregistered? All land must be registered with the Cadastral office and all rights in rem must be registered with the Land Registry. The registration with the Cadastral office is essentially required for tax purposes, while the registration with the Land Registry is aimed at rendering the legal title enforceable towards all third parties. In principle, rights which are purely contractual between the parties cannot be recorded with the Land Registry, but there are few exceptions (see point 4.2). 4.2 Rights in land that must be registered. Consequences of non-registration. According to Section 2643 et seq. of the Italian Civil Code, all the rights in rem identified at point 3.1 shall be registered with the Land Registry. In addition, the following shall be registered with the Land Registry: - co-titles or waivers of any of the rights in rem indicated above; - certain judicial claims related to real estate; - real estate leases with a duration exceeding nine years; and - certain contracts and corporate deeds related to real estate. Non-registration implies that the relevant rights may not be enforced towards third parties (although it is effective and enforceable between the signing parties). Any right which is not specifically identified by Section 2643 et seq. of the Italian Civil Code are not required to be registered. 4.3 Transfer of title (or ownership) to the buyer on a land sale. Title is transferred once the purchaser and seller execute a sale and purchase agreement. The agreement shall be in writing, under pain of nullity. The agreement, once notarised, will be registered by the notary with the local Land Registry, in order to render it enforceable towards any third party. 4.4 How some rights obtain priority over other rights: earlier rights defeat later rights. Via Lazzaro Palazzi, 6 STUD 20124 MilanoIO LEGALE T (39) 02 20569315 ASSOCIATO F (39) 02 20569319 C I V I L L AW The general rule is that the right which has been registered earlier in the Land Registry has prior ranking to the right registered at a later date. 5.1 Real estate registries in Italy: differing rules and requirements. There is one Cadastre office and one Land Registry in each province. The ownership title is not embedded into a physical title document, although, upon request, the Land Registry may issue a certificate. Transactions related to real estate and information in this connection may be processed electronically. The Land Registry is open to any member of the public, anyone may ask information. 6.1 Parties (in addition to the buyer and seller and the buyer's finance provider) normally involved in a real estate transaction in Italy. The subjects who are normally involved are: - real estate agents, who often, but not necessarily, put the potential seller and the potential purchaser in contact; - lawyers, who provide advice in relation to the legal implications of the transaction; and - public notaries, who notarise the deed and register it with the Land Registry. 6.2 Remuneration of these persons. Real estate agents are usually compensated with a percentage of the consideration. For larger transactions, lawyers may require hourly rates as compensation, whilst the fees of public notaries are based on fixed tariffs. 6.3 Real estate market in Italy following the global credit crunch and worldwide recession started in 2008. Differently to what happened in other jurisdictions, the Italian banking system did not suffer major turmoils. This avoided the drop in real estate prices which has been experienced in other countries, although, in 2008/9, real estate transactions suffered a significant slow-down. However, in the retail market, transactions in the best locations of Milan, Rome and other major cities, remain stable. With respect to office and industrial projects, local and international investors are still looking for core investment products and are probably waiting for a confirmed stability of the market before investing again into development projects. Via Lazzaro Palazzi, 6 STUD 20124 MilanoIO LEGALE T (39) 02 20569315 ASSOCIATO F (39) 02 20569319 C I V I L L AW 7.1 Duty of disclosure on the Seller. There is no obligation, however, in accordance with the principle of good faith, the seller should make the buyer aware of any fact which could be reasonably considered as relevant for a proper evaluation of the transaction. Plus, the seller will be liable to the buyer for misrepresentation. 7.2 Contractual warranties to the buyer. Standard contractual warranties concern the absence of any restriction on the title and to the building and zoning regularity of the asset. The warranties are essentially aimed at allocating to the seller certain material risks, although they are not generally viewed as an alternative to the due diligence of the buyer. 7.3 Warranty of ownership by the seller. The warranty on the ownership title is set forth by the Civil Code and it is also normally restated in the sale and purchase agreement. Although it would be theoretically possible to derogate from its application, it is invariably rendered by the seller. 7.4 Liabilities of the buyer. The buyer does not have specific liability other than paying the sale price. 8.1 Lending of money to finance real estate. Different rules (if any) as between resident and non-resident persons and/or between individual persons and corporate entities. The Banking Consolidated Act (Legislative Decree no. 385/1993) is the main set of regulation concerning the lending of money in general and contains specific provisions relating to financing real estate acquisitions, which apply if certain specific requirements are met (so-called “mutuo fondiario”). This special regime is applicable only to Italian and passported banks and to loans with a maturity of at least 18 months and 1 day, secured by a first ranking mortgage, with a loan to value ratio not exceeding 80%. The main advantages of this special regime are the following: - for the lender: the mortgage gets consolidated within ten days from registration; in this manner, the lender is fully protected from a subsequent insolvency of the borrower (regular mortgages are subject to a one year claw-back period in case of bankruptcy of the borrower); and Via Lazzaro Palazzi, 6 STUD 20124 MilanoIO LEGALE T (39) 02 20569315 ASSOCIATO F (39) 02 20569319 C I V I L L AW - for the borrower: (i) the right to request reduction of value or partial release of the mortgage each time the loan is repaid for at least 20%; and (ii) a delay in payments can be considered an event of default by the lender only if it has occurred at least seven times. On the borrower side, other than for tax implications, there are no significant differences between residents and non-residents or individual persons and corporate entities. If the requirements for the application of the mutuo fondiario provisions are not met, the general provisions provided for by the Banking Consolidated Act and the Civil Code concerning financing activity will apply. Real estate financing is invariably secured, at least, by a mortgage on the asset. Further security interests are market standards for a wide range of transactions (i.e., assignment by way of security or pledge over receivables arising from leases, insurance proceeds and other transaction agreements) and some others are used only in particular cases (e.g., pledge over quotas/shares of the borrower, parent company guarantee). All security documents shall have a certified date for claw back purposes in case of subsequent bankruptcy of the borrower. 8.2 Minimum formalities required for real estate lending. The loan agreement is not subject to unusual formalities (other than those imposed by regulatory provisions and which may depend on certain specific features of the transactions). A mortgage deed must be made in writing, notarised and registered with the Land Registry. Until its registration, a mortgage is not effective, not even between the parties thereto. A valid registration of the mortgage gives the lender priority right and protection towards all third parties. 9.1 Real estate transfer tax: who is liable. In principle, transfers of real estate are subject to value added tax, registration tax, mortgage tax and cadastral tax, depending on the specific features of the transactions (e.g., residential or commercial buildings) and on the nature of the parties. The seller and the buyer are jointly liable with particular regard to registration tax, mortgage tax and cadastral tax, although the relevant cost is usually borne by the buyer. Registration tax, mortgage tax and cadastral tax are payable upon execution of the sale and purchase agreement. Transfer of real estate may be excluded, exempt or subject to VAT (at a rate varying from 4% up to 21%), depending on the specific features of the transactions and on the nature of the Via Lazzaro Palazzi, 6 STUD 20124 MilanoIO LEGALE T (39) 02 20569315 ASSOCIATO F (39) 02 20569319 C I V I L L AW parties. In certain circumstances, the so-called reverse charge mechanism would also be applicable. 9.2 Tax or taxes (if any) payable by the seller on the disposal of a property. Provided that certain conditions are met, the seller is subject to income tax on the capital gain realised upon the disposal of the asset. In case the seller is a private individual, special exemptions and regimes may apply. If ownership of a company (or other entity), owning real estate, is transferred, the transfer would be subject to registration tax at the fixed rate. 10.1 Main laws that regulate leases of business premises. Leases of business premises are essentially governed by the provision of the Lease Act and by the Civil Code. There is only one type of business lease. The typical provisions for leases of business premises in Italy regarding: (a) length of term; (b) rent increases; (c) tenant's right to sell or sub-lease; (d) insurance; (e) (i) change of control of the tenant; and (ii) transfer of lease as a result of a corporate restructuring (e.g. merger); and (f) repairs are regulated as follows. (a) Length of term The minimum mandatory duration is 6 years, renewable for an additional 6 years (for hotels: 9 + 9). (b) Rent increases 75% CPI (100% CPI is allowed only if the lease has a duration higher than the minimum mandatory term). (c) Tenant’s right to sell or sub-lease Unless otherwise agreed, the tenant may sub-lease the asset. Without the consent of the landlord, the tenant may not assign the lease, unless he transfers the entire going concern. (d) Insurance The tenant is generally required to enter into an insurance policy to cover general risks to the asset. Via Lazzaro Palazzi, 6 STUD 20124 MilanoIO LEGALE T (39) 02 20569315 ASSOCIATO F (39) 02 20569319 C I V I L L AW (e) (i) Change of control of the tenant Unless otherwise agreed, this does not determine the termination of the lease. (e) (ii) Transfer of lease as a result of a corporate restructuring (e.g. merger) Unless otherwise agreed, this does not determine the termination of the lease. (f) Repairs Unless otherwise agreed, the tenant is only required to take care of minor repairs. 10.2 Taxes are payable on rent either by the landlord or tenant of a business lease. The landlord is subject to income tax on the rent (a flat rate of 20% has been recently introduced for private landlords). No tax has to be paid by the tenant, other than those taxes or levies which are specifically related to the activities conducted in the premises. Business leases are subject to registration tax (1%) and, under certain conditions, to VAT. 10.3 Business leases’ termination (e.g. at expiry, on default, by either party etc.). Leases normally terminate upon expiry. At the end of the first term, the lease is automatically extended for an additional term, unless an early termination notice is sent by one party to the other (but the landlord may exercise this right only under specific circumstances). Notwithstanding any provision to the contrary in the agreement, the tenant may always terminate the lease, at any time, with an early notice of six months, in case of “serious reasons”. In certain cases, the tenant is allowed to receive a goodwill indemnity, upon termination of the lease. 10.4 Landlord and/or the tenant of a business lease liability for their respective obligations under the lease once they have sold their interest. In case of sale of the asset, the lease is automatically assigned, by operation of law, to the buyer, in his position of new landlord. This assignment is effective only for the period following the transfer, whilst the past landlord and the tenant will remain responsible, vis-à- vis each other, for any pre-sale non compliance. 11.1 Zoning and related matters concerning the use and occupation of land. Via Lazzaro Palazzi, 6 STUD 20124 MilanoIO LEGALE T (39) 02 20569315 ASSOCIATO F (39) 02 20569319 C I V I L L AW The main pieces of legislation regulating town planning and building activities are Law no. 1150/1942 and Presidential Decree no. 380/2001 (Consolidated Building Act). Law no. 1150/1942 regulates certain general aspects of the zoning legislation, while the Consolidated Building Act has reorganised the existing provisions and regulations on building activities. Legislative Decree no. 152/2006 contains the main set of provisions on environmental matters. In particular, it regulates the protection of soil, water and air; waste management and reclamation of land; and indemnification procedures for damages against the environment. In case of public needs, the State or other public bodies (i.e. Municipalities) may expropriate lands. The procedure commences with a formal statement, whereby the relevant public agency identifies the land which is subject to expropriation and the public needs for this procedure (in case of urgency, however, public authorities may occupy a land without this initial formal statement). With this respect, the main set of provisions is set forth by Presidential Decree no. 327/2001 (Consolidated Expropriation Act). The owner has the right to receive an indemnity, aimed at restoring him for the loss of the asset. The price mechanism depends on the specific features of the asset and the owner has always the right to challenge the amount of the indemnity before a court of law. Compliance with zoning and building regulation are normally controlled by the relevant Municipality. The Region, the Province and the Municipality, depending on the circumstances, and the Regional Environment Agency are competent on monitoring compliance with environmental law. Buyers may obtain reliable information through public available sources of information, although they normally require the assistance of qualified professionals for this exercise. 11.2 Main permits or licences required for building works and/or the use of real estate. The main types of permits are: - declaration of commencement of building activities (“DIA”), which is a self-statement that authorises the signatory to start building works after 30 days as from the filing of such declaration with the Municipality; - building permit, which is an explicit licence issued by the Municipality, upon request of a party. Their application depends on the specific features of the building works and may vary from Region to Region. Via Lazzaro Palazzi, 6 STUD 20124 MilanoIO LEGALE T (39) 02 20569315 ASSOCIATO F (39) 02 20569319 C I V I L L AW The obtainment of building permits and licences is a regulated procedure, which, however, is not particularly cumbersome. Implied permissions are not obtainable. Timings and costs significantly depend on the features of the project. *** For further information call the following attorneys: Maria Luisa Pompole Vincenzo Lagonigro
Posted: 11 May 2012

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