[BUYING AND SELLING REAL ESTATE IN ITALY] 146
Residential property is typically owned by individuals, while owners of commercial property are most frequently legal entities
According to article 832 of the Italian Civil Code the ownership is "the right to enjoy and dispose of things fully and exclusively, within the limits and in the ways provided by the law". The referred limits include the other real rights, so-called minor in rem rights. They are: 1. real rights of enjoyment: emphyteusis, surface rights, usufruct, real right of use, real right of residence, easements (or predial easements);
under either private or public law. Trust property (negozio fiduciario)
Trust is a “sui generis” hypothesis of ownership, in which the beneficiary (that can be individuals, trusts or companies) transfers to the trustee the ownership of the real estate that shall be managed in the interest of the beneficiary and under the indications of the latter. The trustee, by virtue of the so-called pactum fiduciae is required to re-transfer the property to the beneficiary, either at his request or at the expiry of the agreed term. It is essential to highlight that, unlike the trust legal framework provided in Common law systems, in case of a breach of the pactum fiduciae by the trustee, it is not granted by the Italian law to the beneficiary any tool to resume the property. Consequently, the only remedy available to the beneficiary would be a compensation for damages claim. Indeed, the pactum fiduciae entails a full transfer of ownership to the trustee, who is bound only by the management of the real estate in the interests of the beneficiary. This also means that the immovable property is exposed to the risk of being subject to the claims of trustee’s creditors. The trust is created by a document called trust deed. VI. TYPES OF IN REM RIGHTS IMPACTING ON OWNERSHIP Ownership over the property is the principal and main real right that allows the widest powers.
2.
real warranty rights: pledge and mortgage.
Minor in rem rights are constituted and remain linked to the real estate, regardless of the change of the ownership of the estate itself (i.e., right of sequela). Minor in rem rights are enforceable against purchasers of the real estate subject to the transcription in the Real Estate Registry. Minor in rem rights not transcribed are opposable to the purchasers if mentioned in the deed of sale of the real estate, as in this case the real estate is transferred encumbered by the minor in rem right. Differently from the right of ownership, which is not subject to statute of limitation period and is protected by specific actions (rei vindicatio action, actio negatoria servitutis), minor in rem right expire due to
non-use for the 20-year period. VII.PRINCIPLE OF MUTUALITY
Pursuant to article 16 of the Preliminary Provisions to the Italian Civil Code, the principle of mutuality configures the necessary condition for admitting foreigners to the enjoyment of the civil rights granted to Italian citizens by the national law,
ILN Real Estate Group – Buying and Selling Real Estate Series
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