Practices Areas
Real Estate
The notary firm assists customers in the purchase of their home and in all real estate transactions. Therefore, these are very important operations in the life of a person, it is good to rely on an impartial and specialized public official in this matter: the notary.
By law, in fact, notaries protect both buyers and sellers, ensuring that the purchase of a property meets all legal requirements. Therefore, it is advisable to contact your notary from the beginning of the negotiations (signature of the proposal or preliminary) and not only at the end, when the act is signed.
The choice of the notary is free (cannot be imposed by the real estate agency or the bank applying for the mortgage) and is decided by the buyer, otherwise agreed with the seller.
The main legality control activities that the notary must carry out can be summarized as follows:
– identification of the parties;
– verification of the non-existence of previous mortgages, bonds or encumbrances of all kinds at the Territorial Office of the Revenue Agency and the regularity of the urban and cadastral property;
-identification of act’s tax regime;
– verification of compliance with the rules on anti-money laundering, traceability of payments and commissions paid as intermediary to any real estate agency.
Company and Enterprise
The notarial function is also carried out in the context of business activity through the provision of legal advice and control of legality of acts and contracts relating to companies, which in our legal system is entrusted to the notary. Especially, notaries are delegated the activity of recording the most important corporate resolutions, as well as the relative legality control for the purposes of their registration in the Register of Companies.
In addition, since 2000 the notary has been entrusted with the control of prior legality for the establishment of new companies. Therefore, a capital company, which until then needed about 150 days from its establishment to its effective operation, today can be operational on the same day of the notarial act or at most in a few days.
There are many types of companies for carrying out business activities: the choice depends not only on the nature and quality of the subject that wants to constitute the company, but also on the circumstances that can determine the birth of the company. Therefore, it is advisable to consult a notary in advance, who will be able to explain the opportunities and consequences, as well as the risks and responsibilities, presented by each company model.
Inheritance Succession and Donations
Thanks to his specific training on the subject, the notary can help to make the most appropriate choices to deal with a inheritance succession or a donation without risk.
Indeed, for anyone who intends to donate their assets, it is essential to consciously dispose of their heritage according to the rules laid down by law.
It is therefore essential, in these cases, to contact the notary to avoid future, painful family disputes and, above all, problems of merchantability for the goods donated. Thanks to the specific competence in matters of inheritance, the notary will be able to suggest the best solutions to achieve the desired result by the testator, in compliance with the current legislation, avoiding any null clauses or provisions because in contrast with the law.
The notary also plays an important role in the generational transition of businesses. In fact, through the “family pact” the entrepreneur is given the power to transfer to one or more descendants the company or partecipations shares, without there can be any dispute in the inheritance.
Family
Spouses can regulate their property relations by choosing among the various options provided by law. The legal matrimonial property regime of the spouses, in the absence of choice and therefore of a different convention, is constituted by the legal community. The spouses can pass from the regime of the legal community of property to the regime of separation of property, by means of a contract concluded by public deed received by the notary in the presence of two witnesses. Tihis will be noted in the margin of the marriage deed.
The spouses can choose to set up a property fund, that is, the type of agreement through which certain assets can be allocated to meet the needs of the family.
As of June 5, 2016, date of entry into force of the c.d. “Cirinnà Law” (n. 76 of 20.5.2016), it is also possible in Italy for two persons of the same sex to contract a bond of stability, the civil union. The effects are largely analogous to those arising from marriage. Like spouses, civil units may also move from the regime of legal community to that of the separation of property, and vice versa, or even form a property fund.
For the first time, cohabitation between people linked by stable emotional relationships (so called cohabitation “in fact”) was regulated in an organic way with the c.d. “Cirinnà law” (n. 76 of 20.5.2016). Unlike in the case of civilly united persons, who are fully treated as married persons in relation to the succession resulting from death, no inheritance right has been recognised in the event of death to the de facto partner. This is why it is still particularly important to use the will to plan your succession protecting the cohabiting. Moreover, the cohabitees in fact, have the possibility to regulate the property relations related to their life in common with the signing of a special “cohabitation contract”.
Mortgages and Loans
The role of the notary is central to mortgage practices. Its intervention is provided for by law as the mortgage is recorded in the real estate registers.
The notary, in addition to checking the validity of the contract and to assume responsibility towards the bank for the property and the mortgage freedom of the property granted as collateral, checks the existence of any unfair clauses to the detriment of the customer, prevents fraud against banks and customers.
The borrower may decide to vary the terms of the loan already entered into, to improve the economic conditions of the contract. The modification can take place in the following ways:
a) “replacement” mortgage: the old mortgage is extinguished to start a new one at the same or another bank. This involves the extinction of the old mortgage and the conclusion of a new loan with related registration of a new mortgage;
b) “renegotiation”: is an agreement between the bank and the customer to modify some conditions of the mortgage contract: usually the duration and/or the interest rate. This amendment, which requires the cooperation of the original parties to the contract, however, finds an important limit because it is necessary to respect the amount of the outstanding debt of the old loan at the date of conclusion of the amendment;
c) “mortgage subrogation” (or “portability” of the mortgage): the borrower obtains from a bank other than the one with which he originally contracted the loan, a new financing at better economic conditions in order to pay off the pre-existing debt; and “replace” the new bank to the old in all the guarantees that assisted the previous contract, including the mortgage already in existence. The portability limit is that the new financed amount must be exactly the same as the outstanding debt of the old loan. The costs of the subrogation transaction are legally borne by the new lending bank.
Third Sector
The term “Third Sector” refers to entities that have non-profit purposes (private “non-profit” entities) distinct from public entities (first sector) and private entities characterized by the pursuit of profit purposes (second sector).
The law allows anyone the possibility of setting up an association or foundation: the Constitution, art. 18, protects and enhances this right. Organizations can be created with the most varied purposes: solidarity, welfare, cultural, medical, recreational, social, sports, professional, student, union, political, religious, patriotic, food and wine etc.
The notary (public official, with high professional specialization and third party) is entrusted with the control of legality on the constitutive and amending acts of the legal entities of the Third Sector. It is especially appropriate to contact the notary in good time, who will guide citizens in choosing the most suitable solutions and best suited to their wishes. The notary may also provide qualified advice where it is necessary to harmonise different requirements.
Agriculture
The notary firm has decades of experience in assisting operations related to the agricultural world.
The purchase of a small farm or an entire estate requires the knowledge and handling of specific regulations, as well as very complex. In fact, it is necessary to take into account the specific rules on the pre-emption of the neighbour and the tenant, on the rural buildings, as well as the possible presence of special entitlements or aid certificates.
It is also of fundamental importance to know in depth the rules governing the figures of the direct farmer and the professional farmer, and the rules on the different types of agricultural societies, to ensure with security the possible enjoyment of tax benefits.
In addition, the aspects common to all real estate sales must be taken into account (the checks on property and freedom from mortgages, building and cadastral regularity, the urban use, the methods of payment of the price and recent rules on installations and energy certification).
All these aspects are closely related to each other, so it is appropriate to turn to those who are used to dealing with these subjects, often neglected by professionals who do not live in close contact with the agricultural world.
Consulting
The notarial activity is not limited to the signing of an act. Clients can have recourse to the notary, as often happens, even just to have an opinion on a specific legal case and in this case the consultancy activity carried out can be extremely useful to highlight the different opportunities, for clarification on how to achieve a certain purpose, to identify or exclude the need for the completion of an act, to know possible causes of invalidity, to guide the parties on the dangers that may arise from the completion of elusive acts, and generally to obtain an impartial technical judgment. For his particular knowledge of civil, commercial and tax law, the notary can give opinions (oral or written), especially in the field of contracts, succession, companies, taxes and taxes, even regardless of the conclusion of a notarial deed; and may act as arbitrator for disputes which may be the subject of a compromise, that is, decide, as a private court, disputes in respect of which the parties do not address the judicial authority. One of the most important cases in which the notarial consultancy activity proves to be decisive is that of the choices regarding the patrimonial arrangement of the family, for example, to direct the party on the valid and effective drafting of a private will or to prepare the succession practices.
Voluntary Jurisdiction
Voluntary jurisdiction includes proceedings for the management of a shop or business to protect, in most cases, weak people. For this it necessarily requires the activity of a third impartial party, such as the judge and, from 28 February 2023, also the notary.
In fact, you can also contact the notary, in addition to the judge, to request the necessary authorizations for the stipulation of public deeds and notarized private writings in which a minor intervenes, an interdict, an incapacitated person or a beneficiary of the support administration, or relating to acts concerning hereditary property.
This means a considerable saving of time, as the authorization issued by the notary takes effect after 20 days from communications to the Court and the Public Prosecutor, without a complaint being made.
Auction
The notary also provides assistance in the field of real estate executions, which are managed through the Notary Association of Bologna for Real Estate Executions and Insolvency Proceedings at the Civil Court of Bologna.
The notary, delegated by the Court, deals with the preparation of the notice of sale, keeps and records the auctions, prepares the transfer decree, takes care of the fulfillment (registration, transcript, voltura, etc.).
The deposits in the Court of the proceedings of the procedure take place electronically through the Consulle Notaio, the point of access of the National Council of the Notary to the Telematic Civil Process (PCT).
To buy at auction consult the following specialized websites www.intribunale.net and www.astegiudiziarie.it. See also the Portal of Public Sales (PVP) of the Ministry of Justice.