Article 1385 of the Civil Code defines a security deposit as a sum of money or quantity of fungible things paid as security and in connection with a contractual performance.
ART. 1385 "If at the time of the conclusion of the contract one party gives the other, by way of a deposit, a sum of money or a quantity of other fungible things, the deposit shall, in case of performance, be returned or set off against the performance due. "If the party who gave the deposit is in default, the other party may withdraw from the contract, retaining the deposit; if the party who received the deposit is in default, the other party may withdraw from the contract and claim double the amount paid"..
In this regard, it should be noted that the Property purchase proposalaccepted by all parties, becomes for all legal purposes a Preliminary Sale Agreement and the Confirmatory Deposit thus takes on its legal value.
The Confirmatory Deposit is not represented by standard figures; it is usually highlighted in the 15/20% of the price agreed upon by the parties, at the negotiation stage.
Fiscal Aspect:
The Confirmatory Deposit is taxed at 0.5% at the relevant tax office, in addition to fixed charges and stamps, which are compulsory for the validity of the registration of the preliminary.
This amount is consecutively deducted from the registration taxes on the final Deed of Sale.
The certificate of fitness, provided for by theArticle 24 of the Testo Unico dell'Edilizia (DPR 380/2001) "certifies the existence of the conditions of safety, hygiene, healthiness and energy saving of the buildings and of the systems installed in them, assessed in accordance with the regulations in force'.
But what is the procedure for obtaining the document? Who issues it and what attachments must be submitted with the application to obtain the certificate of fitness?
The certificate of fitness is issued by the manager or head of the competent municipal office with reference to the following interventions: - new constructions; - total or partial reconstructions or elevations; - work on existing buildings that may affect the safety, hygiene, health and energy-saving conditions of buildings and the systems installed in them.
A copy of the declaration submitted for registration in the Land Registry, drawn up in accordance with the provisions of Article 6 of Royal Decree-Law No. 652 of 13 April 1939, must be attached to the application for the issue of the certificate of agibility.
The certificate of fitness can also be applied for: a) for individual buildings or individual portions of the construction, provided that they are functionally autonomous, if the primary urbanisation works relating to the entire construction project have been completed and tested, and the related structural parts have been completed and tested, and the installations relating to the common parts have been tested and certified; b) for individual building units, provided that the related structural works are completed and tested, the installations are certified and the common parts and primary urbanisation works declared functional with respect to the building subject to partial agibility are completed.
The documentation to be attached to the application is prescribed in Article 25 of Presidential Decree 380/2001, which is reproduced in full.
The property purchase proposal is the tool, mainly used by real estate agencies, that allows real estate negotiations to be brought to a successful conclusion while protecting all parties.
The proposal contains:
- The personal data of the proposing party;
- The description and identification of the proposed property;
- Offered purchase price and payment terms;
- Effectiveness of the purchase proposal, i.e. the time during which the proposal is irrevocable;
- Delivery of the property in case the proposal is accepted by the selling party;
- Information on the notarial deed, timing and notary chosen to draw up the final deed (the notary is chosen by the purchasing party);
- Acceptance of the proposal;
- Mediation fee, part of the agreed commission in case the negotiation is successful.
The proposal is formalised by means of a pre-printed form filed with the Chamber of Commerce.
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It is appropriate to enclose:
- A deposit slip, usually a bank, postal or bank draft made payable to the seller. The cheque is held in trust by the real estate agent until the proposing party has knowledge of the acceptance of the proposal.
- Should the proposal be rejected and the parties fail to reach a fruitful agreement, the real estate agent is obliged to return the title.
- Any annexes containing suspensive clauses, which allow the proposing party to protect itself with regard to the obtaining of documentation or the request for financing in the form of a mortgage loan.
When the proposal is formalised, it is presented to the selling party, who has three options:
- Accept the offer;
- Make a counter-offer;
- Reject the offer.
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In the first case the selling party will sign the form for acceptance, which acceptance will be communicated to the offering party.
Once acceptance has been communicated, the proposal shall have binding effect on both parties, who shall become: Selling Promisor and Purchasing Promisor.
At this point the proposal will become a 'Promise to Purchase' and the owner will be able to cash the enclosed cheque at the formalisation stage, unless otherwise agreed between the parties.
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This procedure is called 'accatastamento' and is carried out by means of the DOCFA (Documenti Catasto Fabbricati) computerised procedure in which the taxpayer himself, with the help of a qualified professional technician, proposes the cadastral annuity.
If the Revenue Agency rectifies the proposed or already attributed cadastral annuity, it is obliged to notify the interested party of the new cadastral annuity against which, within 60 days, an appeal may be filed with the competent Tax Commission.
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Land registry changes and registrations
When a deed of transfer of rights in rem in immovable property is to be registered or a declaration of inheritance is to be filed, an application for cadastral transfer must be submitted within 30 days of registration of the deed.
The application for cadastral transfer enables the registration of land registry deeds and the transfer of ownership or other real rights. This obligation can be discharged by notaries by applying for 'automatic transfer by transcription note', whereby the updating of land registry deeds is carried out directly with the help of the data submitted for transcription at the registrar's office.
In the case of cadastral variations of an objective nature, i.e. those that have permanently affected the type, consistency or intended use of the property, the interested parties are required to submit a special application to the office of the Agency.
Both changes and land registry changes can be submitted on a magnetic medium, thus enabling the immediate updating of the deeds.
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