Selling or buying a house with a private deed in Italy

You can sell or buy property with a private deed, but use a notary / Gtres

14 November 2018, 14:33

Original article by Alessandro Galluci, condominioweb

Can the sale of a property take the form of a private deed? To answer this question, we have enlisted the help of the lawyers at condominioweb.

What does the law say about real estate sales? Article 1350 of the Italian Civil Code specifies that "contracts transferring ownership of real estate" must be carried out "by public or private deed, under penalty of nullity". In that case, why are we so used to thinking that public deeds of sale, called rogiti in Italian, are the exclusive territory of the notary?

Since when is it possible to sell real estate with a simple private deed?

Since 1942, the law providing for sale of a property by private deed has been present the Italian Civil Code. However, due to the complex nature of this question, there are many added contingencies to consider.

The contract for the purchase and sale of real estate in Italy requires written formalisation, which takes the form of a contract with real effects, i.e. a contract in which the transfer of ownership takes place as a simple exchange of consents between the parties (art. 1376 cc).

In order for it to have effect for third parties too, the sales contract must be transcribed in the registry office of the public land registry (Agenzia delle Entrate) in order to publicly announce the changes and make the transfer of ownership legal.

Not only that, but this transcription in the land register also serves to resolve disputes between several purchasers of the same product. The first transcriber prevails over the subsequent transcriber, regardless of which contract is earlier.

The inscription requires that the deed to be transcribed consist of a public deed or an authenticated private deed. This entails the need to go to a notary, since they have the power to authenticate signatures.

That’s not all, though: since the purchase and sale of real estate is produced by the simple exchange of consents between the buyer and seller, the previous and subsequent operations destined to allow it are objectively important and complex. As such, the intervention of a professional like a notary is considered indispensable.

Thus, as has been clearly pointed out, "the deeds of sale of real estate, from the legal point of view, are simple private deeds that do not require the intervention of third parties, other than the buyer and the seller, except at the time of authentication of signatures, by a notary or other public official, necessary to give them legal recognition and effectiveness" (Civil Code, articles 1350 and 2702).

So while private deeds are perfectly admissible, in view of the complexity and delicacy of this type of transaction, in which any error or omission can cost either party a lot of money, it is common practice and also highly advisable to turn to a notary for the drafting of the different acts (commitment and deed) in the form of a public deed, which is subject to all the usual controls.