Italian law on real estate

The tenets of Italian real estate law are based on the 18th century Civil Code, which has been augmented and altered by later additions. Like much law it’s still pretty arcane though. Note that Italians and foreigners are treated equally under the Civil Code.

Real estate is divided into two classes under Italian law — moveable and immoveable property. The immoveables are the land and the buildings upon it, the moveables may be items attached to the estate but not part of it: this could be anything from a boat that’s berthed on your land to shares in the company that owns the real estate. Immoveable property is always governed by Italian law.

Italian real estate — freehold ownership

Ownership of land is generally on a freehold basis (absolute ownership) though beware that absolute ownership may not be as absolute as you think! As you will find out during the purchase process, other people may have a claim over elements of your estate, even the entire estate. Other property rights include ‘diritto di superficie’, or surface rights. This is similar to leasehold, allowing someone to build on a piece of land, yet not own the land itself.

Just as in English leasehold, once the rights expire, the landowner becomes the de facto owner of the structure. You can, however, own a property freehold while not owning the ground on which it stands; this is likely to be the case in an apartment within a block for instance.

Italian property — ownership ‘in comunione’

If two or more people own a slice of property or land in Italy, then they will usually own it in comunione or in undivided shares, though it is also possible to establish a contract that apportions shares of the property (there are similar distinctions in English Law, with the principles of Joint Tenancy and Tenancy in Common, but there are important differences, particularly in relation to wills and what happens if one of you dies). Should you own in comunione then one of you may, in theory, sell the whole property without informing the others!

However, the Italian legal principle of pre-emptive buying rights (more below) would then kick in. If one of you dies, then your will would dictate what happens to your share. Of course as you haven’t strictly divided the real estate into shares this can get ticklishly difficult: definitely one to discuss with your lawyers, not least for the implications on tax and inheritance duties.

Italian apartment blocks and condominio

Particularly relevant in Italian apartment blocks, the condominio comes in where a piece of real estate or slice of land is physically divided up between a number of owners. As well as the privately owned elements (the flats or apartments) there will be communal elements such as stairways, the roof, gardens and parking areas. A condominio will be established and, if there are more than four owners involved, you must employ or appoint an administrator. In practice, a small development may appoint a committee of owners, with one of the householders taking on the duties of administrator; in large apartments, an employee may be engaged. Should there be more than ten owners involved, you have to draw up a constitution and set of rules.

Back to ‘absolute ownership’. This may not preclude the rights of other people over your land. These might be fairly harmless (though possibly irritating) such as rights of way or rights to hunt. Foreign buyers of real estate in Italy have become apoplectic when Italian hunters swarm merrily all over their land, releasing dogs and firing away at anything that moves. It may be a pain but it may also be quite legal for them to do so. Find out.

More scary is the prospect of somebody holding a rock-solid tenancy on part of your land (and tenancy confers pretty strong rights in Italy), holding a mortgage over part of it, or having an exercisable option over part of your Italian property. Again: find out.

Third party rights on Italian real estate

Even though you’ve signed the preliminary sale contract (compromesso) which binds both seller and buyer, this doesn’t abrogate the rights of third parties. Perhaps the vendor owes money to a creditor? That creditor could have a claim over your Italian property even though you bear a contract of sale. The sale is only complete in the eyes of the outside world when it is registered with the land registry. Ah yes, and there are two land registries, the binding one in this instance is the Pubblici Registri Immobiliari. Back to tenants’ rights again. Ownership (though not permanent ownership) can be acquired by possession: check who, if anyone is living on the land you are buying.

Those two land registries again. The Pubblici Registri Immobiliari is the register of all mortgages and deeds of ownership. In addition, each province has a registro casale or tax register, which values real estate, land and property in Italy for taxation purposes. Do the two land registries tally? No.