THE NOTARY FOR FOREIGNERS

When you need a notary?

In Italy it’s necessary to go to the notary:

• to buy a house or other real estate;
• to formalize a bank loan;
• to draw up proxies to give representation to a third person;
• to change properties relations between married partners;
• to request for authorizations of the court for minor children;
• to donate assets;
• to set up, modify and make all acts relating to companies;
• to receive and use foreign acts.

BUYING A HOUSE

Italian law allows the purchase of real estate by foreigners with the following procedures:

1) illegal resident alien: only if allowed by an international treat or if there is reciprocity, that is to say if in his Country of origin an Italian is allowed to buy a house (to verify the condition of reciprocity: link to the Ministry of Foreign Affairs http://www.esteri.it/MAE/IT/Ministero/Servizi/Stranieri/Elenco_Paesi.htm)

2) regularly resident alien: with a resident permit for specific reasons or residence card; the same applies in case of expired residence permit, provided that the application for renewal has been produced to the notary before or within 60 days by the expiring date, with the receipt of presentation to the competent authority

3) EU citizen: no limit (after the last enlargement in 2007, there are 27 countries in EEC: Belgium – France – Germany – Italy – Luxembourg – Netherlands – Denmark – Ireland – United Kingdom – Cyprus – Estonia – Latvia – Lithuania – Malta – Poland – Czech Republic – Slovakia – Slovenia – Hungary – Greece – Portugal – Spain – Austria – Finland – Sweden – Bulgaria – Romania).

First of all, it’s necessary – to know what documents are needed to acquire rights in Italy – to identify which of these categories may a foreigner refer to.

TAX RELIEF FOR FOREIGNERS LINKED TO THE PURCHASE OF THE SO CALLED “MAIN HOME”

Italian law will facilitate and encourage the purchase of your main residence (so called Main Home), decreasing taxes in various ways for the buyer. In particular, when purchasing, the buyer will pay 2% (registration tax), if he buys from a private individual or 4% (VAT) if he buys from a company (except some special assumptions), plus the mortgage and cadastral taxes as standard rates (currently a total amount of Euro 400.00).

Foreigners are also allowed to enjoy the “main home” facilities if they have the requirements, the same requested to Italians. To know what are the requirements to buy enjoying “main home” facilities, please contact the notary office.

Another tax relief related to the purchase of the “main home” concerns the deductibility (to some extent) from income of interest paid on loan granted to buy the so called first home.

Finally, the income produced by the “main home” is not subjected to income tax.

LOANS

On the Ministry of Foreign Affairs web site is explained that “in drawing up the list related to the condition of reciprocity on real estate purchases, guidance is not provided on mortgage loans which, unless otherwise noted, do not require a further test of reciprocity, being those acts related to purchase transactions”.

COMPANIES, ASSOCIATIONS AND OTHER OPERATIONS

A foreigner can set up a company in Italy, establish an association or any other transaction under the same conditions mentioned for the purchase of a house. With a warning: reciprocity can exist only for certain subjects. If, for example, in a country an Italian may set up a company but is not allowed to buy a house, a foreigner (not legally residing in Italy) coming from the same country, will be allowed to set up a company in Italy but not to buy a house.

TO DRAW UP A POWER OF ATTORNEY

An individual is not always able to express directly his will: for example because he is abroad, or far away from the place where a contract or transaction should be closed.

In these cases, he should use a proxy, a document that gives a person the power to perform a legal or material act instead of another person.

For example, if the husband is abroad and it must be urgently closed the act of buying of a home, the husband – before leaving or being already abroad – can give his wife a power of attorney so that she will enter into the contract for both.

If the power of attorney comes from abroad, all rules related to the foreigner act will be applied.

TO MAKE WILL

A foreigner can make will, identifying in an official document the person to whom he will leave all his properties after his death. To know how to make will, please contact the notary office.

DEED OF GIFTS

A foreigner can make a deed of gift, leaving all his properties to anyone in life. Even in this case, it is better to contact the notary office.

PATRIMONIAL REGIMES BETWEEN MARRIED PARTNERS

The property regime is the set of rules governing the ownership and methods of administration of assets purchased by two married people while the marriage lasts and when the marriage is dissolved for any reason (death, divorce).

In other words, the property regime stands the rights that every spouse has on goods purchased (by either spouse or both) during the marriage, for the period of the marriage as well as in case of dissolution.

In Italy the “common” regime usually established between two married people (unless they make a different choice) is the legal community property of the goods. The married partners may, however, choose the “separation of property” (not to be confused with the “judicial separation” of the spouses), or a system of community with special rules (conventional community).

The choice affects both the power to sell or mortgage the property without the consent of the other spouse, as well as the rules for the partition of assets in case of dissolution of the marriage.

According to art. 30 of Law n. 218/95, even foreign citizens residing in Italy can choose one of the property regimes provided by Italian law and this can make easier their integration into everyday life in Italy.

Given the influence that can have on major contracts, but also to protect the weaker spouse, the choice of the property regime or its modification do not always receive the attention it deserves. It’ s always better to contact the notary offices to receive appropriate advice on how to regulate the family property regime.

LEGAL COMMUNITY

The community of goods is the legal patrimonial regime that Italian law connects “automatically” to marriage, while leaving the couple the chance to choose different rules (such as the separation of property or conventional community).

In brief, the legal community provides that all properties acquired by married partners during their marriage, even if formally registered to only one spouse, actually belong to both. This means that to sell, donate, mortgage or otherwise dispose of it, is required the consent of both spouses and the value of property should be shared in half between the married partners. Goods used as strictly personal or for professional reasons and work remuneration, are excluded

SEPARATION OF PROPERTY

According to this patrimonial regime both spouses continue to buy goods, after their marriage, as if they were not married to each other. The property bought by each spouse remains as its staff, without the other can claim any right on the asset.

Naturally, the couple can buy a good shared half by each, but each partner can then sell or donate his share even without the consent of the other one (unlike what happens with the legal community property).

(source: Consiglio Nazionale del Notariato)