[BUYING AND SELLING REAL ESTATE IN ITALY] 146
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, as the individual’s creditors will have the 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 an 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 thought a company structure. The most used legal forms are limited liability companies. Residential property is typically owned by individuals, while owners of commercial property are most frequently legal entities
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. The trust is created by a document called trust deed. TYPES OF IN REM RIGHTS IMPACTING ON OWNERSHIP Ownership over the property is the principal and main real right that allows the widest powers. 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: i) real rights of enjoyment: emphyteusis, surface rights, usufruct, real right of use, real right of residence, easements (or predial easements);
VI.
ILN Real Estate Group – Buying and Selling Real Estate Series
Made with FlippingBook Online newsletter