Buying a house in Italy: the preliminary contract of sale
It is normal practice in real estate transactions in Italy that both the parties sign a preliminary contract of sale (contratto preliminare or compromesso). It is a true contract that obligates both parties to sign the final contract, stipulating the main elements of the transaction and the conditions for the future performance of the formalities related to the deal at the notary’s office. Although it is not obligatory by law, it is advisable to sign it considering the usually high price of properties and the complexity of real estate procedures.
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Requirements of a preliminary contract of sale
Being a private agreement, the preliminary contract of sale can be stipulated without the presence of a notary public; nevertheless, it is useful to have a notary clarify what obligations arise from it in the case of substantial advance payments, a long time between the preliminary and final contracts or a seller at risk of insolvency. In order to ensure maximum protection for the prospective purchase, the notary public draws up the preliminary contract using an authenticated private or public deed, so that it is transcribed in the Land Registry.
Transcription is aimed at reserving the purchase of the property: it turns the preliminary contract into an agreement that is legally binding towards anyone (technically it is “enforceable against third parties”). The seller, as a result, cannot sell the property to someone else or grant a mortgage over the property or create a passive servitude or grant any other prejudicial right over the property.
The preliminary contract of sale should include:
– full description of the parties (first and last name, date and place of birth, citizenship, national ID number; foreigners will also need to provide their passport number and an Italian address)
– identification details of the property, including the cadastral reference of the outbuildings for the exclusive use of the buyer;
– details relating to the building license or the request of the building license (with mention of any burden connected with the building license);
– technical data relating to the building, described in a detailed attachment concerning technical specifications (capitolato) that cannot be modified without the agreement of both parties;
– deadline for completion (which is usually not less than 30 days from the agreement);
– sale price and method of payment;
– details of the bank guarantee (issued prior to or upon the signing of the preliminary contract)
– the presence of mortgages or any other type of burden: in case of presence of a mortgage opened by the construction company covering an entire compound that shall be parcelled out amongst several buyers, the notary will not be entitled to certify the Contract of Sale until the parceling out of the said mortgage to the individual buyers has been completed.
The preliminary contract is binding for both the parties and will be included in the final contract of sale (rogito), which marks the completion of the property transaction and must be drafted by a notary public.
If you reside abroad and you can’t be present to sign the contract, you can confer power of attorney to on somebody who is practically and materially able to fulfill all the activities related to the sale.
If one of the parties is a foreigner, the preliminary contract must be drafted in Italian and translated.
Upon the signing of the preliminary contract, the buyer usually pays a deposit (caparra confirmatoria).
To serve as a guarantee for both parties, the advanced deposit of price should be at least 10% (a vendor is less likely to pull out if he has to refund a significant percentage of the price as a penalty for killing the sale). If the sale goes through, the deposit is deducted from the total price. If the buyer withdraws from the agreement, the seller will withhold the deposit by way of compensation; if the seller withdraws, the buyer will be entitled to reimbursement of twice the amount of the deposit.
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