[BUYING AND SELLING REAL ESTATE IN ITALY] 145
law provides a legal tool that can be used by the heirs to protect themselves from inherited debts, that is the acceptance of the inheritance “with the benefit of inventory”, which results in a separation between the heir’s assets and the deceased’s, by virtue of which the latter’s creditors will not be allowed to satisfy their claims on the heir’s assets. The usucapion is an original way of acquiring the ownership of real estates through the continuous, uninterrupted and uncontested possession for a certain period of time. The ordinary term of usucaption requires 20 years to elapse, while the abbreviated one requires 10 years to elapse and occurs when possession of the real estate was purchased in good faith "by virtue of a title that is suitable for transferring ownership and that it has been duly transcribed". For the small rural property, the abbreviated term of usucaption is further reduced to 5 years from the date of the transcription of the title. The purchase by usucaption of the property requires a judicial assessment, having the purchaser provide rigorous proof of continuous, uninterrupted and unobjected possession for the period required by law. V. FORMS OF OWNERSHIP The forms of ownership vary according to the needs of the interested person depending by a number of elements, such as taxation issues, estate planning, costs. The most common structures of ownership are single ownership, co-ownership, companies, trust. It is also possible to buy an interest in a property by buying shares or units in the ownership structure.
Single ownership Single ownership is the simplest and least expensive option in which the owner has sole control of the real estate. The main disadvantage with individual ownership is that it does not offer any asset protection, right to claim against the personal assets of the owner, including the real estate. Co-ownership Co-ownership may be of a different type: i) joint ownership by two or more persons holding undivided quota over the real estate such as ownership by spouses, ii) co- ownership by two or more persons holding specific quota of the real estate. In a usual real estate community, each participant can transfer his/her quota or his/her right when he/she wants, to whoever he/she wants, at the price deemed more convenient, without having to respect any right of first refusal of the other co- owners. The pre-emption right provided for by the Italian civil code is specifically foreseen for inheritances (i.e., succession retract), according to which the co-heir who wants to sell his/her quota must notify the proposed sale to the other co-heirs having the pre- emption right. The pre-emption right only applies to onerous assignments and, therefore, it does not apply to cases of gift of the quota to unrelated third party; also, it does not apply if the sale is made to a co-heir, but only if it is sold to an unrelated third party. Companies Real estate may be acquired through a company structure. The most used legal forms are limited liability companies.
ILN Real Estate Group – Buying and Selling Real Estate Series
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