3-4/2005 UINL - Notarius International

Notarius International 3-4/2005 D. Ockl, Protection of the Purchaser of Immovables to be built in Italy 153
mortgage; this right is conferred on the debtor, the third
party purchaser, the purchaser under the contract or the
assignee of the mortgaged asset, or on behalf of the latter,
the latter being limited to that portion of the property acquired
or contracted to be acquired.
However, that right does not apply to all mortgages but
only to mortgages taken out to secure real estate financing.
(Under Article 38 of the single banking code real estate
financing is defined as a loan granted by a bank on a
medium or long term basis by means of a mortgage secured
on prime properties in compliance with specific determinations
by the Bank of Italy on the basis of deliberations
of the CICR (Inter-ministerial Committee for Loans
and Savings) or a loan secured by a higher-ranking mortgage
based on the determinations of the Bank of Italy).
It should be pointed out that as this was a provision inserted
in the single banking code the purchaser may be
not only a natural person (definition of purchaser in the
enabling law and the legislative decree) but also a legal
person or a company.
8.2 Subdivision of the financing
The prohibition in Article 8 of the decree is applicable
to any mortgage. It precludes the notary from accepting
the deed of sale and purchase if previously to or contemporaneously
with the drawing up thereof the financing
has not been subdivided into shares or title has been perfected
by the cancellation or fractionalising of the mortgage
or of any charge on the property.
That is intended to prevent documents from being
drawn up which include a provision for the fractionalising
or cancellation of the mortgage. That then does not
occur, with consequential serious prejudice to the purchaser,
and the possible risk of compulsory expropriation
of the property bought by the purchaser, in order to satisfy
the debt of another party.
9. The right of pre-emption in the event of compulsory
execution over the property
In the event that a property is delivered to the buyer and
is used by the buyer as his principal residence or by a relative
to the first degree by consanguinity and subsequently
forms the subject of compulsory execution over immovable
property, the buyer shall be entitled to exercise a
right of preemption over the property at the definitive
price achieved at auction (Article 9 of the decree).
10.Reforms in the matter of bankruptcy
The decree also affects the bankruptcy rules.
Article 10 precludes antecedent transactions from
being set aside, provided that the acquisition
- was effected for valuable consideration,
- concerns the transfer of the property or other right in
rem over immovables to be built in which the purchaser
undertakes, within twelve months of acquisition or
completion of the building, to establish his own residence
or that of relatives within the third degree by
consanguinity.
- was effected at a fair price to be determined on the
date on which the preliminary contract was drawn up.
Exclusion applies to
- acts for valuable consideration,
- payments of premiums and commissions relating to the
insurance contracts and guarantees mentioned in
Articles 3 and 4, where they are entered into in the exercise
of the undertaking’s activity within the limits
laid down.
None the less, it should be observed that the rules governing
the setting aside of antecedent transactions have
already been amended pursuant to Article 2 of legislative
decree no 35 of 14 March 2005 (competitiveness decree)
4 . That provision recasts the wording of Article 67 of
the bankruptcy law; it precludes the setting aside of antecedent
transactions on various grounds including “sales
at a fair price of properties for residential use intended to
be the principal residence of the purchaser or of his relatives
to the third degree by consanguinity” (Article 67,
third indent, point (c) of the bankruptcy law).
The amendment to Article 67 aforesaid appears to reduce
the scope of the exemption from the setting aside of
antecedent transactions under Article 10 of the legislative
decree.
However, Article 10 could afford greater protection as
opposed to the terms of Article 67 third indent, point (c)
of the bankruptcy law. Article 10 refers to a wider category
of contractual situations, and to rights in rem, contrary
to the provision contained in the bankruptcy law,
which mentions only sales.
11. Solidarity Fund for purchasers of immovables to
be built (Arts. 12-18)
The legislature was concerned to provide for a form of
retroactive protection to cover cases of purchasers involved
in proceedings concerning a crisis situation which
were unresolved prior to 31 December 1993, and had not
been initiated on a date subsequent to that of the issue of
the decree.
The Ministry of Economy and Finance has established
a Solidarity Fund (Articles 12 to 18 of the decree) in
favour of such purchasers of real estate. It will pay compensation
to such purchasers of property to be built who
have lost sums of money or other assets without obtaining
title or other right in rem over the property forming
the subject matter of the agreement with the builder, or
assignment of title or acquistion thereof or of a right in
rem over immovables to be built through the initiative of
a cooperative.
12.Bibliography
For a bibliography see page 148.
4 legislative decree no 35 of 14 March 2005 enacting urgent measures
within the scope of the action plan for economic, social and regional
development (competitiveness decree, converted into Law No 80 of
14 May 2005).
5 legislative decree no. 270 of 8 July 1999.