ILN: BUYING AND SELLING REAL ESTATE - AN INTERNATIONAL GUIDE

[BUYING AND SELLING REAL ESTATE IN ITALY] 149

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. VI. TYPES OF IN REM RIGHTS IMPACTING ON OWNERSHIP The 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); ii) real warranty rights: pledge and mortgage. Minor in rem rights are constituted and remain linked to the real estate, regardless 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.

ILN Real Estate Group – Buying and Selling Real Estate Series

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