Buying in Italy with a power of attorney from abroad

What the two articles of the Civil Code require

Article 1350 lists the contracts that must be made by public deed or private writing, on pain of nullity. The first item is contracts transferring ownership of real property. A verbal agreement to buy a flat therefore binds nobody.

Article 1392 is the rule for powers of attorney: the power is ineffective if it was not given with the forms prescribed for the contract the representative will conclude. For a property purchase, that means the power must be in writing and, in practice, of a type the notary can accept for an Italian deed. This is why a casual signed letter “authorising my cousin to buy” is not enough, and why the notary should see the draft before you sign it abroad.

Where a foreigner can have the document made

The notariat’s study on documents from abroad (Studio 7-2021/A) answers a question many buyers ask. Italian consulates have notarial functions, and the powers of attorney (general and special) and wills are the most requested; but since 28 May 2011 consular offices may exercise them only for Italian citizens abroad. A person who is not an Italian citizen and needs a document for Italy can use only the other route: a professional performing notarial functions in the country where they are.

The study then stresses that the foreign notary’s role differs by legal system. In civil-law countries a notary resembles the Italian one. In common-law countries a public notary mostly certifies the signature, the signer’s capacity, date and place, without checking the document’s content. For that reason, the study says, in common-law cases it is normally powers of attorney that can be attached to Italian notarial deeds, while other foreign documents, such as a transfer of real estate, pose reasonable doubts and the parties are often better advised to sign at an Italian notary. A power of attorney is the document type the system is built to accept.

Apostille or legalisation

The same study says a document from abroad must be legalised or carry an apostille under the Hague Convention of 5 October 1961 to produce effects in Italy, and calls this a mandatory requirement, except where a bilateral or multilateral treaty exempts it. It lists Germany, Austria, Belgium, Denmark, France, Ireland and Latvia as examples of exemption under specific conventions. An apostille certifies the authenticity of the signature and the capacity of the official who certified it. It does not certify that the content is right.

A likely order of work, to be confirmed with the notary because the sources fix only the apostille and the notary’s checks:

1. Ask the Italian notary for the text of the power of attorney, or at least its required contents.
2. Sign it before the competent notary or authority where you live.
3. Obtain the apostille (or legalisation) for that country.
4. Send the original to Italy; the notary attaches it to the deed.

What the Italian notary checks

The notariat’s guide for foreigners says that, for persons acting through a representative, the notary must be sure the person before him “has lawful power of attorney and that all relevant authorisations necessary for the completion of the transaction are in place”. The 2021 study adds that the notary performs a legality check, both substantive and formal, on any foreign document used in an Italian deed; if the check fails, the document cannot produce effects in Italy unless the defects can be cured. The foreign document does not have to meet the formal requirements Italian law sets for an equivalent Italian one; it is enough that it is valid under its own legal system.

Two further points for the file:

• Language. The notariat’s guide says a deed can be drafted in a foreign language known to the notary, with an Italian translation. For attachments, the study explains that the translation rules are not the same as for the deed itself, but the notary must understand the entire text of what he attaches. Ask whether a translation of the power of attorney is needed, and from whom.
• Contents. The sources set out no model text. Ask the notary what the power must say about the property, any price limit and whether it covers the preliminary contract. The prima casa declarations and the payment declaration are made in the deed, so ask whether your attorney can make them for you.

Risks to manage

• Scope. A power limited to the preliminary contract does not cover the deed. Say what is covered.
• The attorney is a person you trust with your money and your signature. The notary’s check does not remove that risk. Pick someone for the role who is not the seller’s agent.
• Revocation and timing. The sources Payotte read do not describe how revocation works; ask the notary how to withdraw a power that is no longer wanted, and agree an end date.
• Your own identifiers. Ask the notary whether the buyer’s tax code is needed on the power of attorney; see the tax code guide.

Which professional to consult

The notary who will sign the Italian deed is the first call, followed by the notary or competent authority where you live. A real estate agent can introduce an attorney you have never met, but should not be the attorney. A surveyor or architect can review the cadastral and planning position so that the power of attorney can stay within a price limit. See notaries, surveyors and real estate agents. Payotte does not list or rank notaries.