The Function of Public Notaries in Italian Property Conveyancing.

There is some confusion about Italian Public Notaries amongst international clients who buy and sell property in Italy. There is a mistaken belief that the public notary (notaio) performs the same function as a lawyer, solicitor or attorney (avvocato).

Introduction

Public notaries grew from the institution of scribes and scriveners. They first became respected for their knowledge of technical matters as public officials in Ancient Rome, where they were often attached to the court. These Notaries prepared and drew up fair copies of deeds and other legal documents, which were endorsed using the seal of the court and thus rendered ‘public acts’. Eventually, Notaries were granted the right to use their own official seals to give their acts public status.In modern times, acting on behalf of the Italian State, notai are appointed by the Italian Ministry of Justice. Vested with the rights of official authority, which they receive from the Italian State, a document drawn up by a notaio is a guarantee of its legality and authenticity.

The role of the Italian notaio

A notaio is a public officer who operates in every area of law including family, property inheritance, asset, corporate, rural, local authority, and other areas. In Italy, notaries are present at all those significant times in life. The notaio is empowered by the Italian State to authenticate documents, agreements, contracts and other instruments by affixing his seal and signature. In so doing, Italian Public Notaries officially witness the wishes expressed by the signatories and give a personal guarantee regarding the content and date of the instrument.

Unlike an avvocato that you engage to act exclusively on your behalf in a legal matter and who exclusively committs himself/herself to protecting your interest, a notaio should ensure that the law is respected. The typical feature of a notary public is maintaining neutrality.

Although a notaio has public authority, the notaio operates on a self-employed professional basis. Paid mostly by clients (not by the taxpayer) on the basis of a rate fixed by the Italian State for services provided.

The specific role of the notaio in Italian property transactions:

During a property sale, the notaio ensures that all the proceedings comply with Italian property real estate law. Whether the property is purchased from a private vendor or through a real estate agent, in accordance with Italian legislation, a notaio must oversee the sale. The notaio is responsible for receiving all legal documents pertaining to the sale, checking their authenticity and drawing up the Atto di Vendita.

By law, a notaio must remain impartial during the property transaction. The notary can provide legal advice if requested but must maintain impartiality. It is usual in Italy for the vendor and purchaser to use a single notaio for their transaction.

What exactly does the notaio do in property transactions?

The notaio may execute certain checks at the very end of the conveyancing process, but this only happens after the buyer has already paid substantial amounts of money to the vendor in the form of deposits. Checks might include:

• each party’s rights to buy or sell the property
• A search in the land registry to see whether there are any third parties with a claim on the property
• A search to identify the possible presence of mortgages
• Verification of the presence of planning permission – however, a notary public does not verify the compliance of the property with planning permission.

In most cases, the main role of the notaio revolves around the exchange of contract:

• Draws up the final deed of sale, Atto di Vendita, based on input from vendor and or estate agent
• Verifies identity of the parties involved in the transaction
• Attends signing of the final sales contract, Atto di Vendita – the notaio reads aloud the terms of the contract to all parties
• After registration of the deed of sale, the notaio gives a copy of the contract to both buyer and vendor
• Oversees transfer of funds and ensures that State taxes and fees are paid in full
• Ensures new deeds of ownership are registered at the Land Registry

Why would a buyer need an avvocato for a property transaction?

Although it is not a legal requirement in Italy, as they would in their home country, many buyers appoint an avvocato to make sure their best interests are served throughout the three-step Italian property purchasing process.

An experienced English-speaking property lawyer can guide you through the complexities of Italian conveyancing and related paperwork as well as help resolve any legal issues that come up along the way.

While instructing a lawyer may seem like an additional, and possibly superfluous cost, prevention is always a better, less frustrating and less costly solution than curing legal issues once you own a property in Italy. A buyer’s avvocato will conduct thorough due diligence - conduct searches and detailed checks on the buyer’s behalf. This ensures that the buyer gets:

• The right legal advice throughout the transaction
• The best contractual terms and conditions on the property
• Deposit protection
• Exactly the property the buyer expects
• Smooth conveyancing
• No hidden surprises along the way or later

According to Italian law, it is the buyer’s legal right to appoint the notary public. It is advisable that buyers do this rather than be influenced or forced in to a choice of notary public by parties who might be in a position of conflict of interests (e.g, an estate agent or private vendor). Naturally, the same is applicable to choosing a lawyer.

Please feel free to contact us if you need any legal advice or help finding a notary public experienced in managing international property transactions.