The New 2015 European Inheritance Rules

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European Inheritance Rules

Action should be taken now to benefit from the new 2015 European Inheritance Rules. According to The European Commission some 450,000 cross-border successions occur in the EU each year, estimated to be worth in excess of €120 billion. As it stands, many countries in the EU, including Italy, have laws governing ‘forced heirships’ along with different opinions as to whether inheritance is dealt with under local law, or the law of the nationality of the deceased. To somewhat solve this confusion and prevent disputes, effective August 17th 2015 new rules will allow individuals across participating EU member states to choose which country jurisdiction will apply to the devolution of estates. Read more

Italian and EU International Divorces

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Italian and EU Divorce Law

Across much of the European Union, marriages between couples of different nationalities, are on the rise. In addition, the number of married couples living as expats in another EU country is increasing. Unfortunately, this means that international separations and divorces are becoming more common.

Obviously, people don’t enter into married life thinking about where the best location for a divorce would be; married couples are unlikely to be interested in thinking about this while they remain happy together, and couples may not be able to agree on the appropriate jurisdiction if they are about to be or are already separated. However, where couples choose to divorce can have a major impact on both parties’ financial health, so getting it right is crucial. Read more

Italian succession law

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Italian succession law

How does it work?

Italian succession law is based on the Roman Law principle which gives some protection to close members of the family, partially limiting the right of the testator to dispose of his/her own assets.  Testamentary Succession is defined as the assignment of the hereditary assets in compliance with the wishes of the testator as set out in an Italian Will whereas in the absence of a Will inheritance is devolved following the principles of Legal Succession.

Where there is no will, succession law gives rights to a number of legitimate heirs who have rights to the assets of the deceased. Such heirs are the spouse of the deceased and the relatives identified by the law starting from the closer ones until the 6th degree of connection.

Italian succession law reserves a significant quota of the inheritance to very close relatives: spouse, ascendants and descendants are all defined as “forced heirs”, meaning that the testator cannot exclude them with their Will. When drafting an Italian will, the testator is free to dispose of a part of his assets known as “disposable quota”. This allows the testator to assign only part of their assets to strangers or non-relatives.

Succession law is based on unity of inheritance which highlights the difference between property and non-property assets: the law of the last domicile or citizenship of the deceased party is applicable to non-property assets, while the law of the country where the property is located is applied to property assets. Therefore, properties in different countries will be regulated by the law of the country where each property is located.  The succession procedure is deemed to be closed when all assets, rights and pending payments have been transferred to the rightful heirs either by mutual agreement or as consequence of judicial proceedings. Agreement of inheritance is then produced in written form and signed by the relevant parties.

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Usucapion

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Usucapion

‘Limitation of actions’

Usucapion (usucapione) is a legal procedure which can give you ownership of a property in Italy without need of any specific title such as a deed of purchase or a Will and without any agreement with the owner of the property. Usucapione pictures one legal situation which is connected with possession of a property which must be without violence. This possession must take place, with public knowledge. After a number of years which can be 10 or 20 depending on the circumstances, you can obtain the legal title and become the legal owner of this property; this happens even if you aware the owner of the property is someone else.Usucapion

You become owner of a property belonging to someone else if you possess the asset i.e. you make use of it somehow for a period of time and if you behave, during this time, as if you were the owner of this property.

On the other hand, the true owner should have behaved by not showing any interest in this property, letting the property be implicitly used by another party; typically someone moving abroad, not taking care of this property and neglecting it.

What is the purpose of this? Usucapion has the legal purpose of giving certainty to legal relationships giving a privilege to someone not being the owner, who nevertheless takes care of it. In relation to the owner not taking care of it and neglecting it completely.

20 years for real estate assets, acquired in bad faith. This starts from the moment of possession. While this becomes 10 years if you obtain possession in good faith. This period of time must be continuous with no interruptions, in order to convert this factual condition (possession) into ownership it is necessary to obtain a court decision to declare that usucapione occurred. It is a ‘factual’ condition and must be recognized in court. You can give evidence in any way but this typically takes place through witnesses. The peaceful possession taking place throughout time without interruptions can give title of ownership of a property. However it is necessary to obtain a court decision declaring usucapione is taking place.

Therefore if you own property in Italy which you have neglected for sometime it is advisable to consult an attorney to prevent the risks connected with usucapione.

Please note, any statement made in this article is intended to be a general practical introductory explanation only and not formal legal advice. This firm accepts no liability or any responsibility for any statement made.

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Translating Legal Documents from English to Italian

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Translating Legal Documents from English to Italian

Legal translations in Italian real estate transactions

All binding legal documents relating to an Italian real estate transaction must be written in Italian, independent of the nationality of the parties. Italian legal writing is highly technical, ritualistic and often archaic due to close links with Roman Law. Ultimately it can appear to be obscure for people lacking a solid legal background in Italian law. On top of that, the profound differences between legal systems, more specifically between the English/American system based on Common Law and the Italian one based on Civil Law adds to the confusion.

As a matter of fact there are juridical concepts in Roman Law that simply do not exist in Common Law and vice versa. There are concepts bearing the same name in the two systems but with different meanings. As a consequence, an accurate understanding of the legal systems and the legal processes involved is essential for translators or interpreters involved in such important transactions. In reality a deep knowledge of the specialist  terminology is required as well as knowledge of the legal concepts implied. This is why a legal document should never be signed without the assistance of a bilingual qualified lawyer who can explain in English the full scope of your commitment.

Many real estate agents use printed contracts with an English translation, yet such translations are rarely faithful and can often mislead the buyer. It’s important to underline that in the case of litigation the Italian version will always prevail.

In the most crucial phase of the transaction, when signing the Deed of Sale in front of the public notary, the Italian law requires the presence of an interpreter if the buyer is not fluent in Italian. Our advice is to make sure that such an interpreter is duly qualified not only under a strictly linguistic point of view, but also in terms of legal background.

Another crucial aspect to bear in mind is the independence of the interpreter. This would exclude a bilingual real estate agent, an English speaking relative or friend of the seller or an Italian English teacher.

Explaining to you the Deed or Sale that you are about to sign is a very delicate task and you want to make sure you are putting your trust in the right professional. Please remember that the Italian version of the Deed will prevail so it is essential that there is an expert and independent explanation of the legal implications that are involved.

Your independent legal adviser has the right qualifications to assist you throughout the real estate transaction and will always make sure you have a full understanding of the documents you are requested to sign and the legal consequences implied.

Please note, any statement made in this article is intended to be a general practical introductory explanation only and not formal legal advice. This firm accepts no liability or any responsibility for any statement made.

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Italian inheritance law regulation

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What are the principles at the basis of Italian inheritance law?

The law n.218 of the 31st of May 1995 regulates the field of Italian inheritance law in the framework of international private law.

The succession rules are determined on the basis of the national law of the deceased party at the moment of his death.italian inheritance law

The Italian legislator adopted the principle of “unity of inheritance”. This principle differs substantially from the one adopted in common law countries. It is based on the separation between non-property assets and property assets: to non-property assets the law of the last domicile or last citizenship of the deceased party is applicable, and to property assets the so called “lex rei sitae” (law of the country where the property is located). One of the most important consequences is that, if the hereditary asset includes properties located in different states, the succession of each single property could be regulated by the law of the country where the property is located.

The law regulating the succession is the national law of the deceased at the time of his death. The Italian rules on conflict of laws consider the possibility that the national law of a deceased foreigner might defer to the law of another country. Such deferment is effective only if the law of the third State accepts the deferment. Here is a practical example: if a British citizen before his death left some properties in Italy, the succession will be regulated by the British law. But following the British “conflict law” the law applicable to properties should be the “lex rei sitae (law of the country where the property is located), that is/viz., the Italian inheritance law.

The testator has the right to submit his succession to the law of the country where he resides. Such choice has to be formally expressed in a will and shall not be prejudicial of the rights that the Italian law provides for the so called legittimari” ( members of the family who have the right to receive a fixed part of the property of the deceased even against the will) who are resident in Italy at the moment of death of the deceased.

It is highly advisable to draft an Italian will assisted by your Italian  inheritance lawyer in order to limit the consequences of the “legal succession”. The “legal succession” applies where the deceased has not left a will, in such case the Italian law determines which relatives of the deceased have a right to succeed (primarily the spouse, the legitimate and natural children, and the ascendants). In case of lack of heirs, according to the Italian inheritance law, the hereditary assets present in Italy would be assigned to the Italian State.

Please note, any statement made in this article is intended to be a general practical introductory explanation only and not formal legal advice. This firm accepts no liability or any responsibility for any statement made.

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What is a certificate of occupancy?

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Certificate of occupancy in transactions of properties in Italy

The Certificate of Occupancy (also called Certificate of Habitability) certifies the suitability of a residential property as being fit for human habitation.

It is issued by the competent municipal offices following verification that the building and its systems comply with health, safety and structural stability regulations. According to law, prior to issuing the certificate of occupancy, the competent authorities should also verify that the building complies with planning permission.

The case law of the Supreme Court is unanimous in stating that in real estate transactions the certificate of habitability is one of the documents that the vendor must deliver to the buyer before completion. As a matter of fact the buyer has the full right to verify that the property is suitable to satisfy his legitimate interest, that is the usability and marketability of the property. The above mentioned certificate can be considered an essential requirement of the building because it has direct effects on the legal use of the property as stipulated in the contract.

Unless otherwise stipulated in contractual agreements, the responsibility to provide the certificate of habitability belongs to the vendor. In case of delay or failure to deliver a certificate of habitability, there is a clear case of non execution of a contractual obligation (breach of contract). A recent decision by the Supreme Court states that, “The vendor of a property intended for residential use has a duty to deliver to the buyer the certificate of habitability without which the property is unmarketable”. (Cass. 23 of January 2009, n. 1701).

In case of absence of certificate of habitability the property can nevertheless be transferred with a notarial deed of sale but only with the buyer’s express, written consent. Verifying the existence of the certificate of habitability before completion of the purchase of a property should certainly be part of the legal due diligence.

Please note, any statement made in this article is intended to be a general practical introductory explanation only and not formal legal advice. This firm accepts no liability or any responsibility for any statement made.

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Legal responsibilities of real estate agents in Italy

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Real estate agents in Italy

Legal responsibilities of real estate agents in Italy

According to the Law 39/1989 real estate agents must be registered with their local Chamber of Commerce. If the agent is not registered, he will then be liable to fines and other penalties and he will not be entitled to the agreed commission. This legislation also provides an important guarantee for the consumer, in that it requires the agent to have adequate insurance cover in order to practise their profession. The scope of such insurance policy must provide the consumer with cover in the event of  professional negligence on the part of the agent.

According to article 1759 of the Italian Civil Code the real estate agent must make certain disclosures to the parties if s/he knows or becomes aware of matters which strike at the roots of a transaction – your Italian Attorney can advise in full detail on such situations. Whilst the real estate agent is not required to undertake any technical-juridical investigations concerning the property which might have an impact on the transaction (legal due diligence), he is nevertheless charged with duties to disclose information according to the principles of  normal professional diligence. The  agent is therefore obliged to give information on each circumstance within his knowledge or that he should have known about under those principles . To impart wrong or non-verified information to a party would not be acceptable according to the law.

Failure to abide by such principles could result in contractual liability and trigger the right of the consumer to request repayment of the commission. In special circumstances the consumer could also be entitled to request compensation in the form of  damages.

If the culpable silence of a real estate agent induced the consumer to finalize a contract under different conditions than he would otherwise have done had he been properly informed, then the real estate agent could be responsible to pay for the consumer’s losses.

According to article 1755 Civil Code, if the deal is closed thanks to his intervention, the real estate agent is entitled to a commission from both parties. Such a right could arise from a point as early as  the signing of the preliminary contract, assuming that it were otherwise complete in all its essential elements.

In order to be entitled to the commission the real estate agent must have played a decisive role in the transaction. Simply generating the lead of a potential buyer without accomplishing any other task is not enough.

The law does not stipulate or control the rate of  commission, and this can therefore always be freely agreed by the parties. It is always advisable to agree the commission in writing.

Please note, any statement made in this article is intended to be a general practical introductory explanation only and not formal legal advice. This firm accepts no liability or any responsibility for any statement made.

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Italian real estate attorneys and Italian inheritance attorneys

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