Before the purchase of a property, it is useful to have some info about the real estate and, most of all, be
sure to purchase from the legal and rightful owner.
Furthermore, it is important to be aware of what will happen in case of drafting of a preliminary contract (the so named “preliminare” or “compromesso”).
1. Verify the cadastral and title data
Given that the notary drafting the purchase deed will verify the cadastral data and apply for a title search on the real estate, the ”Agenzia delle Entrate” provides for some practical instruments to be aware of the state of the property to buy (or sell).
Title search (“ispezione ipotecaria”)
Through the title search, it is possible to consult registers, notes and official acts registered in “Servizi di pubblicita’ immobiliare” (Real Estate Advertising Services) of ”Agenzia delle Entrate”.
This way, it is possible to check “trascrizioni”, “iscrizioni” and “annotazioni”, which are three different types of registration in the real estate registers.
- The “trascrizioni” are made in case of transfer (e.g. a selling) or establishment of a right of possession (e.g. “usufrutto” –usufruct-) on a real estate or when some given legal events related to real estates are made public (e.g. partition, purchase by inheritance or foreclosure);
- The “iscrizioni” are made in case of establishment of a mortgage (“ipoteca”) on a real estate (e.g. occurred from mortgages);
- “Annotazioni” are made in case of alteration of “trascrizioni”, “iscrizioni” or other previous “annotazioni” (e.g. discharge of mortgages and foreclosures).
In short, through the notary title search, it’s possible to identify the real estate owner and the presence of mortgages or juridical litigations on the property.
2. Knowing why you sign the preliminary contract
The preliminary contract, so named “compromesso”, is an agreement between seller and buyer, who
undertake to stipulate a subsequent and definitive purchase deed. The transfer of the right of property on
the real estate will be assured only after the signature of the final purchase deed.
The parties can stipulate the preliminary contract when an immediate selling is not possible, for example when the buyer is searching or applying for a mortgage or the seller is waiting for obtaining a new home.
The preliminary contract must be drafted in writing (private writing, notarized private writing or public act).
Be aware of preliminary contract registration and fees
The preliminary contract must be registered within 20 days from its drafting. In case of drafting through a notarial deed, the notary will register it within 30 days.
Duties and taxes applied for the registration:
- Registration fee: €200.00, independently of the purchase price;
- Stamp fee: €16.00 each 4 pages or 100 lines (but if the contract is drafted as official record or notarized private writing the stamp fee will be €155.00).
If the preliminary contract includes a payment, the proportional registration fee must be paid in the amount of:
- 0, 5% of the sum representing the deposit under guarantee at the signature of the preliminary contract;
- 3% on the sums representing the advanced payment of the purchase price.
In both cases, the duties paid with the preliminary contract will be detracted from the duties to pay for the
registration of the final purchase deed.
If the proportional registration fee deposited as earnest and the other costs are higher than the registration fee due for the final deed, the higher fee deposited for the registration of the preliminary contract must be reimbursed. The reimbursement must be required within 3 years from the date of the registration of the final purchase deed, under penalty of expiration. The buyer requesting a reimbursement must submit the application to the office registering the contract.
If the titles for which the sums have been paid are not specified in the preliminary contract, these sums must be considered as deposit of the purchase price.
Purchase deed subject to VAT
When the transfer of the real estate is subject to VAT, the tax treatment changes depending on the deposit of a sum as advanced payment or earnest:
- The deposit of an advanced payment, paying part of the agreed amount in advance, must be invoiced with VAT charge. In this case, the registration tax will be due for an amount equal to €200,00;
- The earnest, even if settled by a specific clause, is not subject to VAT because it does not correspond to a provision of services or supplying of goods. For this reason, the payment of proportional register fee (0, 50%) is required.
The benefits from the registration of the preliminary contract
The drafting of the preliminary contract only involves a juridical obligation between seller and buyer and it not implicated the property transfer.
Therefore, it could happen that the seller sells the same property to another one, or he establishes some beneficial rights on it (e.g. usufruct) or a mortgage (“ipoteca”) on the real estate.
In these cases, the buyer could only demand compensation but not the annulment of the purchase or the mortgage (“ipoteca”).
To avoid this kind of situations, the law provides for the service “trascrizione del preliminare nei registri immobiliari” (registration of the preliminary contract in the real estate registers).
This way, potential selling of the same real estate or the establishment of other right in favour of other subjects will not damage the buyer’s rights.
A notary must draft the preliminary contract to enrol it. In this case, the deposit of the mortgage registration fee (“imposta ipotecaria” — €200.00), and some other additional mortgage fees (€35.00) must be added to the registration fee and the stamp duty (€155.00).
Obligation of the real estate agency registration
The real estate agents must enrol every preliminary contact resulting from their activity.
Generally, asking for the registration of every deed concluded thank to the real estate agent is mandatory, especially for:
- Preliminary contracts;
- Accepting of the proposal, when the clauses included in the proposal scheme are sufficient and necessary for the conclusion of the preliminary contract.
Not compulsory enrolment for:
- Listing agreement;
- Purchase proposal;
- Accepting of the proposal, when the clauses included in the proposal scheme are not sufficient and necessary for the conclusion of the purchase preliminary contract.
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