ITALY Law and Practice Contributed by: Guido Alberto Inzaghi, Ivana Magistrelli, Silvia Gnocco and Gabriele Paladini, SI – Studio Inzaghi
2.2 Laws Applicable to Transfer of Title The Italian Civil Code governs the transfer of title, along with tax, zoning/planning and cadastral regula - tions. 2.3 Effecting Lawful and Proper Transfer of Title A deed transferring a real estate asset will be in writ - ing and executed before an Italian notary, who has the duty to authenticate it. Preliminary sale and purchase agreements will take the same form as the final deed and, therefore, must be made in writing. The parties can freely negotiate the content of the notarial deed, except for the following requirements, which must be included in line with the applicable law: • the price and means of payment; • the cadastral data of the real estate asset and declaration of compliance of the cadastral plans filed with the competent Building Cadastre with the actual status of the real estate asset; • a list of building permits issued to build the real estate asset; • the rules allocating the risks and benefits of the real estate asset; and • details of the real estate broker involved (if any) and the relevant fee paid to the broker. Once executed, the notary files the deed with the Real Estate Register ( Conservatoria dei Registri Immobiliari ) in order to avoid conflicts with third parties and future purchasers. Due to the fact that the Italian legal system provides the purchaser a certain level of assurance in terms of title to the property, title insurance might not be necessary. 2.4 Real Estate Due Diligence A potential purchaser should build up a team of legal, tax, commercial and technical advisers. Areas of investigation include: • title to property (a 20-year notarial report, including an investigation into third-party rights, registered
prejudicial liens and the seller’s title to the property plays a fundamental role); • leases and contracts relating to the property; • third-party rights and encumbrances affecting the property; • zoning/planning permits (including agreements entered into with municipalities authorising the construction of the property); • litigation; and • analysis of all technical aspects of the property (eg, plants, fire prevention system and certificate). Technical and commercial analysis often requires on- site visits. Many due diligence exercises are divided into a “doc - umental phase”, where the advisers assess the docu - ments in a dedicated virtual data room and a second phase involving site visits if the first phase yields a positive outcome. 2.5 Typical Representations and Warranties According to statutory law, the seller has to guarantee the: • title to the property; • property is free from any third-party rights, except those reported in the deed (if any); • factual cadastral situation of the property complies with that registered with the relevant cadastre; and • list of building titles. Under the Italian Civil Code, the purchaser must notify the seller of any breach of the warranties within eight days of the relevant discovery. A one-year statute of limitations applies from the date the purchaser takes possession of the property. These provisions may lead to the termination of the purchase agreement and to a full refund of the purchase price. According to current market practice, the parties usu - ally negotiate and include additional representations and warranties and agree to expressly depart from the set of rules included in the Italian Civil Code in relation to warranty defects.
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