The legal conveyancing in Italy

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The starting point is a free initial legal analysis of the matter; the arrival point is a swift and stress-free division of a jointly owned real property.

Are you faced with one of the situations below and do not know what to do?

  • You and the other co-owners cannot find an agreement on how to divide your jointly owned property?
  • Is the property that you co-own not easily divisible?
  • Are the other co-owners refusing to terminate the co-ownership?

The next steps:

Here are the next steps for a swift and safe division of a jointly owned real estate.

1) FREE INITIAL ASSESSMENT

Your first conversation with us is an opportunity for you to ask questions and for us to understand your situation as well as to identify what it is that you are hoping to achieve, and whether we can help you as soon as we have considered your circumstances.

2) RELEVANT DOCUMENTS

It will be necessary for Studio Legale Lazzari to receive complete and extensive information concerning your real estate division matter. For this purpose, we will assist you with collecting all the relevant legal papers.

3) ADR (ALTERNATIVE DISPUTE RESOLUTION) AND MEDIATION

If the co-owners are not able to reach an agreement about how to terminate a co-ownership, mediation in real estate matters is often a preliminary compulsory step to be taken prior to filing a partition action.

We regularly represent clients in various types of mediations, including real estate contract disputes.

4) JUDICIAL DIVISION

When co-owners fail to reach an amicable solution about how to divide their property voluntarily and turn their ideal parts into real, any joint proprietor may file a claim for a judicial division.

5) TERMINATION OF THE CO-OWNERSHIP

Each co-owner of a jointly owned real property has the right to file a claim for a judicial division. In this claim the court is required to terminate the co-ownership and the case ends with the division of the property. After that the actual distribution is executed, with the help of an expert, the Court divides the real estates by creating separate shares for each former co-owner. A well-defined part of the property will be assigned to the former co-owners or, alternatively, a sum of money equal to the value of the co-ownership share will be assigned; if the property is not easily divisible, it will be transferred to the co-owner (or co-owners) willing to purchase it in full.

Division of jointly owned real estate

Our team of highly experienced lawyers has developed extensive expertise in representing clients in both contractual and judicial divisions of co-owned real assets.

Joint ownership occurs when two or more persons hold real title to same real estate. Two or more people can be in the position of holding the co-ownership by way of an inheritance in which a real property is left to more than one person in shares; by way of marriage in community of property or by way of an agreement in terms of which the parties agree to jointly buy a property and that both will have equal shares in the property.

Any joint owner can claim the division of the jointly-owned property. It is a requirement for the division of the joint property that the parties need to try to divide the property among themselves first, before approaching the Court for an action to divide the property, which action is called the action communi dividundo.

The underlying principle of the action communi dividundo is that no co-owner is normally obliged to remain such against his will. If there is a refusal on the part of one of the co-owners to divide, then the other co-owner can file a partition action before the Court. This action affords a co-owner the means to have his undivided share in the property separated and to be compensated accordingly. A Court is competent to make any of the following orders: a) subdivision of the property, if this is practical; b) sale of the property and division of the proceeds between co-owners; c) award the joint property to one of the owners against payments or compensations to the other co-owners; d) make any order that is fair and equitable in the circumstances.

It is beneficial that there exist solutions to divide assets which are jointly owned by parties who no longer wish to maintain the co-ownership, but who cannot reach an agreement on the division of the assets. Without such an action, people might be stuck with a property which they derive no benefit from because it is in the possession of the other co-owners who refuse to sell the property.

If you have questions or need assistance in terminating your co-ownership, please feel free to contact our law firm to discuss your case or to arrange for a consultation. We regularly represent clients in jointly owned real estate matters.

Choose one of our Offices:

  • Bologna
  • Lecce
  • Roma

You will want to convey the main points of your enquiry.

and, if you decide to instruct our firm to deal with your matter, you will be required to provide us with all the relevant information and documentation that pertain to the matter.

Your first conversation with us is an opportunity for you to ask questions and for us to listen carefully to you, understand your situation and provide you with the information you need to decide whether you want legal help from one of our specialist lawyers to take things further.

Terminating a joint ownership is your right. Our lawyers will help you enforce your rights!

A property can be partitioned between co-owners. A partition deed for a property held jointly by several persons is executed to divide the property among the co-owners, so that each person gets a share and becomes the owner of the share allotted to him or her.

It is done by dividing the property according to the shares to which each of the parties is entitled to in law. Each divided property gets new title and each sharer gives up his interest in the property in favour of other sharers.

The procedure applied for the dissolution of co-ownership depends on whether the property or estate is divisible between the co-owned shares or not. This determines whether the court will order a division or whether the property will be sold by judicial auction.

If the property or estate is comfortably divisible between the co-owners, then the Court, with the help of a technical consultant, will divide it into a number of lots reflecting the shares held. If it is not, then the Court will order the sale of the property by judicial auction, with the proceeds of the sale being divided pro rata among the owners according to their respective shares.

When the shares are equal, the division is simple. The estate is divided into lots having an equal or similar value. Any discrepancy in value is set off by a payment which reflects the difference in price. On the other hand, when the shares are unequal, logically the properties assigned to each co-owner must reflect the share each co-owner has, the bigger the share, the bigger the value of the lot. A division is a form of property transfer, since each co-owner will be transferring his undivided share in the property not assigned to him to the other owners, while receiving the other owner’s undivided share in the property assigned to him and therefore ultimately becoming the full proprietor of that property. Consequently, a division requires a public deed published by a notary.

If the property held in common is not the divisible, then the Court will order the sale of the property by licitation, that is by judicial sale, a process which follows the same rules and procedures of a normal sale by judicial auction, with the proceeds of the sale subsequently divided between the owners according to their respective share.

 

Our experienced property lawyers will be able to help you choose which way to terminate your joint ownership and guide you through the division process, working closely with the notary, in order to ensure that your interest in the property remains protected.

There are many different reasons why co-owners of jointly held properties may decide to terminate their co-ownership of a real property by seeking partition. Family members who inherited a property jointly after the testator deceased, or business partners or romantic partners who chose to own property together, and, after a deterioration of their relationship, no longer wish to reside together or engage in business together.

The division may be voluntary (by agreement) or compulsory (by judicial proceedings). There are two methods to legally partition a property: the parties can voluntarily agree to a partition with legal assistance or a co-owner can file a partition action to get a judicial ruling on the division of property. A voluntary partition will result in significantly less litigation than a judicial partition, but the parties will still need to work with experienced specialist lawyers to ensure their interests are being represented during the process and that their property rights are protected during the partition negotiation process with other co-owners.

If you have questions about property partition in Italy or if you need to find out how to end a co-ownership relationship and be compensated for your share of the property, please get in touch with one of our experienced property lawyers.

 

TESTIMONIALS

By Mr D. de S. on Studio Legale Lazzari

Specialist lawyers at Lazzari Law Firm helped me resolve a complicated family and property law issue, and negotiated a difficult property settlement. The whole team handled the matter with respect, courtesy and professionalism, leading to a result by mediation and negotiation, and avoiding an extended and costly trial. Their guidance at crucial points of the process was invaluable. I would highly recommend them to others in assisting and settling real estate matters.

By Mrs K. T. on Studio Legale Lazzari

We used Studio Legale Lazzari to file a complicated inheritance matter and subsequent division of jointly held real properties. They managed the process in a very professional manner. We were given a full breakdown of the costs involved at the beginning and the entire process was stress free. I appreciated not having to travel to Italy and was able to successfully carry out all dealings via post and emails. I would highly recommend Studio Legale Lazzari for their utmost professionalism.

We provide you with accessible and affordable legal advice

We strive to provide first class legal services to our clients, by retaining the most able specialist lawyers to work with our clients, to get the best outcome.

We assist our clients to defend or assert their legal rights, against any opponent and ensure that all our professional and support staff are committed to meeting the service standard you are entitled to expect.

Understanding exactly what each of our client needs and wishes lies at the heart of our approach to law. Each client has a team of at least two lawyers handling their case with thoroughness, strict attention to detail and willingness to work hard to protect the client’s best interest. Our specialists are highly accessible as we believe in maintaining direct lines of communication with our clients.

Our clients value our comprehensive knowledge, hands-on excellence and variety of disciplines. Lawyers at Studio Legale Lazzari have an entrepreneurial approach and move at your pace.

From the first contact with our team, through to the completion of your matter, you will find a team recognised for delivering EXCEPTIONAL SOLUTIONS, CLIENT SERVICE, AND ADDED VALUE.

Our property lawyers have unparalleled experience in division of jointly owned real estate

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FREQUENTLY ASKED QUESTIONS

 What is the difference between a friendly or contractual division and a judicial division?

The difference between the different types of division of property does not lie in the instrument through which the division is obtained (contract or sentence), but rather in the possibility of derogating from the rules provided for by law regarding division.

For example, with a friendly division it can be expected that one of the owners will be given the bare ownership of the property, and to the other the use of the same property. Instead, this would not be possible judicially, since it was only provided that the division would be carried out by assigning to each co-owner a part of the property (without proceeding to a modification of its real rights on the property).

And again, it would be possible to reach a division of property that assigns all the real estate to one owner and all the movable property to the other, while the rules on the division provide that every joint owner should receive a part of both movable and immovable property.

Therefore, in the instance of judicial divisions, the discipline dictated by the law on the “dissolution of the communion” cannot be derogated, contrary to what happens in the event of an amicable division.

 Who can request the judicial division?

Each co-owner has the right to terminate the co-ownership of a jointly-owned property, voluntarily or by filing a partition action.

Under the Italian laws, prior to the initiation of legal proceedings and with the assistance of legal counsel, those who intend to commence legal proceedings in a Court of law in an action related to a dispute concerning a matter of joint ownership, property rights, division of assets, hereditary successions, family agreements, leasing, loans, commercial leases, medical malpractice, medical and paramedical liability, or defamation via the press or any other means of publicity, insurance, bank and financial contracts, are required to first attempt to resolve their disputes through mediation (with the mandatory assistance of lawyers). The attempt of mediation is a condition precedent for legal proceedings.

If a party initiates proceeding before the Court without first resorting to mediation, the judge shall suspend the case and order the parties to mediate. Such mediation must be conducted by one of the ADR providers accredited by the Italian Ministry of Justice. When mediation has not been commenced, the Court will allow the parties up to 15 days to submit the application for mediation.

The mediator shall strive so that the parties reach an amicable agreement to settle the dispute.

If an amicable settlement is reached, or if all the parties assent to the mediator’s proposal, the agreement will become part of the mediation report and constitute and enforceable title for compulsory expropriation, as well as the registration of a judicial mortgage or lien.

 Joint ownership: can the creditor of one of the co-owners seize it?

By law it is possible to seize a house in co-ownership (for example between spouses in communion of property, between co-heirs of the same asset, between two people who purchased the same property by combining their financial resources). However, this must not prejudice the interests of the non-debtor co-owners; this means that, if possible, the judge will have to proceed to divide the property and only in the last instance to sell it. In practice, the Court must verify whether, in kind, it is possible to divide the property by allowing the separation of the share of the “enforced” person (i.e. the debtor) from that of the other joint owners unrelated to the debt: think of the case of a house divisible into two real estate units.

Can I be forced into selling a joint-owned house?

When owners of jointly owned property cannot agree on the sale of the entire property, a partition lawsuit to force its sale may be filed. In a partition lawsuit, the Court can order the sale of the entire property and divide proceeds among its owners. Partition lawsuits forcing all owners in a property to sell that property are usually a last resort. Courts always prefer squabbling co-owners to cooperate in selling the property before considering forced partition.

What are the general principles for the formation of quotas in the division of jointly owned real estate?

The main principle for the formation of individual shares can be summarised as follows: the value of the assets assigned in division (to each individual owners) must correspond to the value of the share of each individual holder. However, our legislator takes also into account that there are properties which are not ‘easily divisible’, i. e. they are not physically divisible or the ‘splitting’ would result in a considerable economic depreciation of the portions. A communion is not easily divisible even when, taking into account the usual destination of the building and its previous use, it is impossible to form parts susceptible to autonomous and free enjoyment. For instance, a single modest apartment, which cannot be split up due to the impossibility of creating two entrances or two bathrooms. Or a building plot that, if divided into two, would make portions no longer usable.

If the property is not divisible, then the Court order that the property is sold by public or private sale.

 What are the legal criteria to terminate a joint ownership?

 Joint ownership of real property may occur in various forms, such as commercial partnerships, or situations where two or more people jointly purchase a property. Sometimes, relationships between the parties deteriorate to the extent where a co-ownership is no longer tenable. If a division of the property is impractical, a solution would be that one co-owner buys back the other co-owners’ share or, alternatively, the property is sold and the proceeds divided between the parties.

If, however, one or more of the co-owners are unwilling to sell the property, and are also unwilling and/or unable to purchase the other co-owners’ share in the property, an impasse is reached, as both parties’ consent is required in order to sell the property, especially in the case of immovable property.

Luckily Italian law provides a solution to the problem, namely the actio communi dividundo, which is a partition action, a type of lawsuit pertaining to joint owners of real property. When two or more owners cannot agree on the disposition of the property in question, any of the co-owners can file a partition action in the appropriate Court. The Court can order that the real property is sold and the proceeds divided among the owners in the same portion as the ownership interests. If the property in question is physically divisible, the Court may order same, with each party to receive a proportionate share of the property. However, when the property in question cannot be physically divided between multiple owners, it is usually more practical for the property to be sold and the proceeds divided between the owners.

What happens if the co-owner with the largest share does not intend to be assigned the entire ownership of real estate?

In this instance, the right to the assignment passes to the other co-owners with the lowest quota. They may ask, individually or jointly, that the property is assigned to them in sole and exclusive ownership.

Who prevails between the co-owner with the largest share that asks for the assignment and the remaining co-owners who add up their shares?

 The jurisprudence has deemed it necessary to privilege the individual shareholder with the highest quota motivating the solution on the basis of a more general principle, deducible from property laws in our legal system. In fact, the property of the individual is deemed to be easier to manage and is viewed favourably, compared to situations of co-ownership protracted over time.

 What happens if none of the participants in the legal partition requests the assignment of the entire property?

 In this instance, a partition lawsuit to force the sale of the property may be filed in Court. In a partition lawsuit, the Court can order the sale of the entire property at auction and divide the proceeds among its owners.

The sale procedure can be judicial or, if there is agreement between the co-owners, it can take place privately.

FAQ

1. What is conveyancing?

Conveyancing is the legal process of transferring legal ownership of a property from one party to another.

Real estate conveyancing involves a number of complex and interrelated activities to meet the needs and requirements of diverse interests involved in the ownership, transfer and financing of real estate.

In order to protect citizens, whether Italian or overseas, the Italian State requires that the contract must be drawn up by an impartial public official who is a specialist in this area: the notary (Notaio).

2. What is the role of a Notaio in Italian property transaction?

By law, the notary acts as a third party who is independent of both seller and buyer, ensuring that the conveyancing of the property complies with all legal requirements, in accordance with the common interests of the parties and with particular attention to the purchaser.

There are numerous activities carried out by the notary for the preparation of all documentation necessary for setting up the property transaction.

Once the deed to be prepared has been defined, the notary must by law carry out a number of preliminary checks on legality, to ensure that the contract will be valid and unquestionable over time.

The notary will ensure that the seller really owns the property and has the right to sell it; the property in question is not subject to specific constraints; the correct fiscal regime is adopted by the parties (the notary is obliged to collect from the purchaser the funds needed for the payment of taxes and duties; upon registration of the deed these will be paid); activities following completion of the deed. The main role of notaries, in terms of Italian property purchases, is to help facilitate the transfer of ownership between the buyer and seller. They oversee the property purchase, collect the taxes due and register the property with the Italian land registry (Catasto).

3. Who chooses the Notary?

The notary must be chosen by the party who is obliged to pay the costs, i.e. the purchaser. The choice is personal and must not be imposed by other professionals.

In Italy a purchaser of property is free to select a notary of his or her choice to document the transaction. In performing his or her function the notary must, by law, be independent and impartial: he or she must protect the interests of all parties equally, regardless of who has appointed him or her.

Please feel free to contact us if you need any legal advice or help finding a Notaio experienced in real estate legal conveyancing in Italy.

4. Do I need to appoint a Notary or a Solicitor when buying a property in Italy?

You need to instruct both a notary and a solicitor, because they perform different functions.

In Italy, as in most of the EU Member States with civil law traditions, the conveyancing of real estate is performed by public notaries. In Italy the profession of public notary is highly regulated. The Italian notarial system provides independent neutral legal conveyancing service to all transaction participants by highly qualified professionals who are subject to rigorous standards of financial responsibility and specialized expertise.

Despite in Italy, as in most of European jurisdictions, the function of transferring of title has become rather straightforward thanks to efficient systems of title registration, nevertheless complexity derives from many legal, financial and regulatory concerns that surround and attend the transfer and the financing of the purchase. Most of the work of conveyancers consists of dealing with a significant amount of legal aspects including consumer protective legislation, incidence of taxation, public and communal rights and interests, requirements of financing banks. All of the above aspects are external to the pure real estate conveyancing however they all make the role of a solicitor crucial in real estate transactions in Italy. While it is not a legal requirement in Italy that purchasers should use a lawyer for legal assistance throughout the conveyancing procedure, engaging the service of your own lawyer is always highly advisable.

5. How would your Solicitors at Studio Legale Lazzari assist me as a buyer in the property purchase process?

Despite engaging the service of a property a lawyer is not a legal prerequisite when buying a home in Italy, it is however crucial to consider that  notaries cannot offer legal advice, hence it is highly recommended  to instruct an independent Italian lawyer who would be representing the interest of you the purchaser. Our lawyers at Studio Legale Lazzari will be happy to provide you with specialist advice by ensuring that you are fully protected as a buyer and that all searches are carried out in good time.

Please contact us if you wish to learn more about our property transaction related legal service.

DISCLAIMER

The writer who is a qualified lawyer in Italy (Avvocato) accepts no liability nor any responsibility for the content of this document which is intended as general information only and is not intended to constitute legal advice or advice of any kind. Professional Italian lawyers should always be instructed in these matters, especially if the prospective buyer is not fluent in Italian language and has no solid experience of purchasing a property in Italy.