The role of the notary in an Italian property purchase

A neutral official, not your adviser alone

The notariato (the national council of notaries) states that the notary acts as a third party independent of both seller and buyer, ensuring that the transfer complies with all legal requirements. The same page says the buyer, usually the weaker party, should contact the notary from the start of negotiations, before signing a purchase proposal or preliminary contract, since both already commit the signer. Neutrality has a consequence for you: the notary will explain the deed and its effects to both sides, but, being independent of both sides, is not the negotiator of either. If you want someone to argue your side, you need another adviser.

The law also limits what a notary may do. Article 28 of the notarial law forbids receiving acts that the law prohibits or that are manifestly contrary to public order, and acts in which the notary’s own wife, close relatives or in-laws are parties or have an interest. Article 47 requires the notary to be in the parties’ presence and to investigate their intentions and draft the deed under his or her own direction and responsibility.

The checks before the deed

The notariato lists the “classic” checks:

• identity and legal capacity of the parties, including marital property regime, the capacity of foreigners, minors or persons under protective measures; the notariato presents this as a protection against identity fraud;
• searches to make sure there are no mortgages, liens or tax seizures, and that the urban-planning and cadastral status of the property is in order;
• whether the property is subject to covenants such as public-housing price or buyer-eligibility limits, a pre-emption right, or restrictions on assets of historical, artistic or archaeological interest;
• the tax regime, and whether the conditions for a relief such as the prima casa are met.

More recent EU-driven checks include verifying that the building’s energy performance is certified, and compliance with anti-money-laundering rules, including the traceability of payments and of commissions paid to any agency. The notariato claims that only 0.003% of real estate transactions reach a court; this is the council’s own figure, which Payotte has not been able to check.

For what these checks mean in practice, see due diligence, the cadastral search and planning compliance.

At and after the signing

At the signing the notary reads the whole deed to the parties (see the rogito guide). The Agenzia delle Entrate states that registration, mortgage and cadastral taxes are paid by the notary at the time of registering the deed. The notariato adds that after the signing the notary must quickly register the deed with the tax authorities and pay the taxes, file it in the public registers and update the cadastre. On request the notary can also hold the price until the deed has been transcribed.

Choosing the notary

The notariato says the choice is absolutely free: it must not be imposed by the estate agent or by the bank providing a mortgage. The buyer is required to pay the fees unless otherwise agreed with the seller. It suggests choosing on the basis of trust, the time the notary will give you and the advice for a safe purchase, and says that if you do not know one, you can go to the nearest. The council’s site offers a “Find notary” search. Payotte does not list, rank or recommend notaries.

What the notary charges

Article 9 of decree-law 1/2012 abolished the tariffs of regulated professions. The same article provides that the fee is agreed when the engagement is conferred, and that the professional must disclose in writing or digitally the complexity of the engagement and the costs foreseeable from the start to the end of the job. Ask for that written estimate (preventivo) with every cost item before accepting. The notariato writes that notarial costs include the taxes and duties that the notary collects for the State, which make up most of the amount paid. The council publishes no general percentage in the pages read, so Payotte gives none either.

Which professional to consult

The notary is the key professional; start there. A surveyor can examine the technical papers beforehand, and a real estate agent can arrange the date. A lawyer can act as your representative in a dispute.