The Italian culture and business environment are highly legalistic in nature, and they are governed by a significant number of laws and regulations.
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The real estate market in Italy, one of the asset classes historically preferred as an investment by the Italians, has not lost its attraction and, despite the recent changes in the Italian market and the cautious economic growth, it remains an appealing sector. The good performance of the Italian real estate market emphasizes both the residential and non-residential assets, where foreign capitals confirm their dominant role and with major international players continuing to invest.
Office and retail are the preferred asset allocation of investors, with Milan and Rome as primary target destinations. Other increasingly significant trends include investment growth in the logistics sector especially in Northern Italy and in high quality real estate assets, as well as in redevelopment projects, with a great focus on town planning and environmental issues.
Foreign investors are not restricted from purchasing real estate assets subject to the principle of reciprocity and the bilateral agreements, if any. However, ownership rights in relation to real estate may differ as follows:. In practice, in relation to a real estate asset, such right may be limited by several circumstances e. The creation and dissolution of the joint ownership, as well as the use and rights of the co-owners, is regulated by the Italian civil code.
In this case, such common parts are co-owned by all the owners of the independent units on the basis of quotas so-called millesimi determined on the basis of the value of each independent unit compared to the value of the whole building. The regulation of the rights and duties of the co-owners of the common parts condomini , as well as the management of such common parts, is provided by a specific section of the Italian civil code and largely refers to a specific condominium regulation to be adopted pursuant to the law.
In principle, an entity owns both the land and the building s on it and, in particular, the owner of the land on which a building is to be erected will also acquire the ownership of such building, once erected, by operation of law. This rule is derogated in case a superficies right diritto di superficie is granted to a person different from the owner of the related land, in relation to a building either already existing or to be built.
The holder of a superficies right is entitled to use and dispose of the building as its sole owner, e. A superficies right can be either temporary i. In case of temporary superficies rights, upon the expiration of the relevant term the right ceases, and, notably, all rights granted to third parties by the holder of the superficies right cease, and the ownership of the building is transferred to the owner of the land by operation of law. There are no specific limitations on ownership structures under Italian law.
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Decision on the investment structure is normally taken in light of existing ownership structure, tax efficiency, governance, operational needs or regulatory requirements. Legal due diligence is an essential step to be carried out by investors prior to the acquisition of a real estate asset.
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Usually, the legal due diligence exercise on the asset covers:. Moreover, legal due diligence does not cover the correspondence of the legal outcome with the factual situation of the relevant asset e. In light of the above, it is advisable for an investor to appoint—in addition to the lawyers in charge of the legal due diligence and a notary public in respect of the year notarial report—also technical advisors including environmental experts to carry out technical due diligence; the outcome of such analysis is to be reviewed by the lawyers to identify legal implications of the issues flagged by the technical experts.
From a general standpoint, the sale process of real estate property is structured and implemented through the following phases:. Phase 1: Execution by the parties of a preliminary and non-binding agreement such as letter of intent, heads of terms, memorandum of understanding, non-binding offer Non-Binding Agreement , and commencement and execution by the prospect purchaser of a legal, tax technical and environmental due diligence exercise over the target real estate property the Due Diligence.
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In more detail:. Terms and conditions of Non-Binding Agreement have no binding nature exception made for the exclusivity obligations but oblige the parties just to negotiate on a good faith basis along the lines of and complying with the transaction key terms the more the key terms are detailed and exploded under a Non-Binding Agreement, the more the parties may not stand back from them over negotiations. Phase 2: After execution of a Non-Binding Agreement, and in parallel with the Due Diligence, the parties start and progress negotiations with a view to enter into a binding sale and purchase agreement, which, generally, has preliminary nature the PSPA.
Phase 3: should the terms and conditions including possible conditions precedent of the PSPA be meet, the parties consummate the closing, through execution of a final sale and purchase agreement also referred to as transfer deed before a public notary. In this context, the ownership title to target asset is transferred from seller to the purchaser. Upon transfer of a real estate property leased through a lease agreement contratto di locazione , the purchaser automatically and by operation of law succeeds into the lease agreement in lieu of the seller, and the lease profits i.
Two kinds of rights, interests and burdens may be imposed legally over real estate: public and private. The public burdens on the asset may derive from an expropriation procedure, registered with the real estate registries e. Moreover, the asset may be burdened by means of a decree of the public authority, issued with reference to environmental protection or cultural goods and heritage protection.
Finally, public easements on real estate may be set forth by the general masterplan or by means of a town planning agreement e. The public burdens are normally registered with the real estate registries and are included in the town planning destination use certificate Certificato di Destinazione Urbanistica , issued with reference to the asset.
The private ones include a wide number of cases, which, with specific reference to real estate, can be exemplified as follows:.
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The mortgage deed must be in notarial form and registered with the competent property register s Conservatoria dei Registri Immobiliari. Being in rem rights, mortgages do not cease in the case of a transfer of the burdened property. Special privileges over real estate assets prevail over mortgages.
Some examples are easements of way, easements of power line, easements of water line. Usufruct rights give the holder the right to enjoy the relevant asset owned by a different person , including its profits, with the obligation to respect its economic destination i. Usufruct rights necessarily have a limited duration: If a shorter term is not provided, such duration is equal to the life of the holder, if a natural person, or to 30 years, if a legal entity. The placement of real estate properties in a trust is commonly used in Italy to better manage prospective hereditary issues as well as to protect assets from potential creditors, in full compliance with Italian laws.
Real estate trusts are also accustomed in our country to keep both the family's real estate assets gathered over time and for the benefit of minor children in the framework of judicial separation or divorce, with the purpose of protecting their own residence. Following the approval of L. In real estate trusts the settlor can transfer to the trustee either the full ownership or the bare property of the immovable good, which can be given in usufruct, rented, sold or be burdened by the right of residence, according to the rules settled in the Trust Deed.
The main taxes associated with the ownership and the transfer of commercial real estate are the following:. Ownership Law 27 December , no. Companies and individuals are subject to IMU in respect of their real estate properties buildings, land suitable for building, rural land located in Italy. The general tax rate is 0. The municipalities may decrease the rate to 0. In case of lease agreement, the TASI is split between the landlord and the tenant in a percentage established by the municipalities. In addition to the corporate income taxes applicable to the capital gains realized from the sale of the real estate and to the rental income deriving from the lease of the said real estate, the main transfer taxes associated to the transfer of real estate are VAT, Registration tax, Mortgage and Cadastral taxes.
The application of the said transfer taxes depends on the features of the transaction i. The sale of commercial real estate is subject to VAT if the seller is a construction company VAT entity and the sale takes place within the period of five years from the construction or the renovation works. The ordinary VAT rate is 22 percent in certain cases the 10 percent VAT rate applies , and the taxable base is the sale-price. The sale of commercial real estate is exempt from VAT, if the seller is a VAT entity, other than a construction company or a construction company if the sale takes place after five years from the completion of the construction or renovation works.
However the seller has the faculty to opt for the application of VAT in the deed of sale, and VAT applies through the reverse charge mechanism. The lease of commercial real estate is exempt from VAT, but the landlord has the faculty to opt for the application of VAT at the ordinary rate on the rent.
In case of sale of commercial real estate by a seller that is not a VAT person, the sale of commercial real estate is out of scope. In case of sale of commercial real estate by a seller that is not a VAT person, the sale of commercial real estate is subject to a Registration tax at 9 percent rate on the sale-price or the higher fair market value of the real estate. The Mortgage and Cadastral taxes respectively apply at 3 percent rate and 1 percent rate on the sale-price or the higher fair market value.
However, if an Italian real investment fund is part of the transfer as seller or purchaser , the Mortgage and Cadastral taxes apply at 1. The commercial lease agreements are regulated, mainly, by Italian Law no. Effective November 12, , the Italian commercial lease market underwent profound deregulation. As a result of this deregulation, although certain rules established by the Italian Civil Code still apply, the Italian commercial lease agreements market is deemed to be in line with international market standards.
Here below is a brief overview of the main provisions of the Tenancy Law, being noted that they may be departed from in favour of the landlord only whenever the requirements above are met:. At the expiry of the first period of six or nine years, the lease is automatically renewed for an additional period of six or nine years, and so on at the following expiries, unless one of the parties notifies the other party of its intention not to renew the contract at the relevant expiry date, by way of a month prior notice.
At the expiration of the first period of six or nine years, the landlord is entitled to prevent the automatic renewal of the lease agreement exclusively on the basis of reasons set forth by the Tenancy Law; this restriction does not apply at the expiration of the subsequent terms. As clearly emerges from the law, this new reality was based on a new regional awareness, but it was left to be analysed by a very marginal process which was only to reach any form of maturity in the 's.see
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The process hinged on certain key figures and projects: Giovanni Astengo The Regional Plan for Piedmont , Adriano Olivetti The Canavese Area Plan , the Ministerial Regional Plans for Piedmont, Lombardy, Veneto, Campania and Lazio , the SVIMEZ development plans for the south, the activities of the Regional Committees for Economic Programming an important experience in bringing a modern, scientific perspective to the discipline, as will be explained later , and the project which marked the coming of age of the whole process at the end of the 's, the "Progetto '80" A Project for the 's.
Despite the great scientific efforts involved is defining and planning a specific area - a regional area, since such an area corresponds more closely to the requirements of an industrial nation - the main activities of planners concerned local planning, making the most of the important new opportunities presented by the new law i.
However, planners were at the same time betraying the spirit of the "integral and comprehensive" approach to planning, since the town plans were not being drawn up in relation to larger-scale plans even in the few cases where they were available. However, it must be pointed out that process of drawing up town plans began rather slowly, as confirmed by statistics published by the Ministry of Public Works showing the small number of local councils that had complied with the requirement of adopting a town plan. This delay stemmed from the tendency to favour an operating philosophy based on exploiting contingent phenomena, to the detriment of a comprehensive planning policy - a philosophy that was to become predominant as decisions became more complex.
We can therefore see a contradictory situation in the early post-war period with "special" plans for reconstruction creating a difficult debate between requirements needing immediate action and much more wide-ranging plans.
Whilst the policy was effective in dealing with the immediate need for housing, it also implied that an opportunity for a systematic approach to modernize Italian towns and cities had been lost.
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