Buying a home is certainly one of the most important economic transactions in a person’s life and, in order to best protect citizens, the State requires that the contract be executed by an impartial public official specialised in this field: the notary.
The notary, in fact, by law acts in a position of neutrality and independence with respect to the seller and the buyer, ensuring that the purchase of the property takes place in compliance with all legal provisions.
For this reason, the buyer (who is almost always the weaker party in the transaction) is advised to contact a trusted notary from the very beginning of the negotiations, even before signing purchase offers or preliminary contracts, which are already binding and committing, so that every aspect of the transaction to be carried out can be evaluated together.
The choice of notary is completely free (it must not be imposed by the estate agent or by the bank from which a mortgage has been requested) and lies with the buyer, since it is the latter who is required to pay the fees, unless otherwise agreed with the seller.
The choice of notary, therefore, should be guided by the client’s relationship of trust with them, also taking into account the time devoted and the advice provided, in order to ensure a safe purchase.
Preliminary contract
The preliminary contract (also known as the “compromesso”) is a fully-fledged contract that binds both parties to enter into the final contract.
The preliminary contract must indicate the main elements of the sale, such as the price and the property to be purchased, the address and an accurate description (floors, rooms, etc.), together with the updated Land Registry data and the date of the final contract. It is also advisable to set out all the reciprocal obligations to be fulfilled before delivery of the property. In the case of the sale of properties under construction, the law lays down specific rules for drawing up the preliminary contract. The preliminary contract must be executed before a notary, in the form of a public deed or an authenticated private agreement.
In the case of:
- substantial down payments on the price;
- long periods of time between preliminary and final contract;
- seller who may become insolvent.
To ensure the maximum protection of the future buyer, it is highly advisable that the preliminary contract be executed before a notary, by authenticated private agreement or public deed, so that it can be registered (transcribed) in the Land Registers. In other situations, the advisability of registration can be assessed with the assistance of the notary.
Registration (transcription) acts as a real reservation of the purchase of the property. The agreement is no longer just a private arrangement between buyer and seller: it is made legally effective against everyone (technically, it is “enforceable against third parties”), and the seller, as a result, can no longer sell the property to someone else, nor grant a mortgage over it, nor create an easement or any other prejudicial right. Any creditors of the seller cannot register a mortgage over the property promised for sale, nor seize it. From the moment the preliminary contract is registered, the property is “reserved” for the future buyer and any subsequent registration or entry will have no effect against them.
When the preliminary contract is registered, the following taxes must be paid, which will then be credited when the final contract is executed:
- 0.50% on the deposit
- 3% of the amounts paid as a down payment on the price.
Source: https://notariato.it/it/casa/il-contratto-preliminare