Purchasing a property in Italy is an exciting adventure, but the process is often fraught with legal pitfalls, especially for foreign buyers. One of the most critical stages is the signing of the preliminary contract, known in Italian as the “contratto preliminare di vendita” or, more commonly, the “compromesso.” A thorough understanding of its clauses and potential risks is essential to protect your investment and avoid costly mistakes.
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“Proposta d’Acquisto” vs. “Compromesso”: What’s the Difference?
Many buyers mistakenly equate the initial written offer with the preliminary contract. It’s vital to understand the distinction to appreciate the legal consequences of each step.
- Proposta d’acquisto (Purchase Offer): This is the first formal step. The buyer submits an offer on the property and leaves a small deposit (typically up to 5%) as a sign of good faith. This offer is only binding on the buyer. If the seller does not accept it in writing, the deposit is returned. If the offer is accepted, it becomes a legally binding agreement, but it rarely contains all the details necessary to finalize the sale.
- Contratto Preliminare / Compromesso (Preliminary Contract): This is a far more detailed and comprehensive agreement. By signing the compromesso, both the buyer and the seller legally commit to completing the final sale. This preliminary contract for an Italian property solidifies all the transaction terms: the exact price, a detailed description of the property, deadlines, and, crucially, the amount of the main deposit (“caparra”).
Registration for Maximum Protection
To shield the buyer from potential seller misconduct (such as selling the property to someone else or taking out a mortgage on it), the compromesso must be officially registered with the Italian Revenue Agency (Agenzia delle Entrate) within 20 days of signing. This makes it a matter of public record and legally enforceable against third parties. Following the complete step-by-step process of buying property in Italy should always include this crucial action.
The Deposit (“Caparra”): Confirmation or Forfeiture?
Upon signing the compromesso, the buyer pays a substantial deposit, usually between 10% and 30% of the purchase price. It is critical to differentiate between the two types of deposits, as they carry different legal implications and deposit risks in Italy:
- Caparra Confirmatoria (Confirmatory Deposit): This is the most common type, governed by Art. 1385 of the Italian Civil Code.
- Should the buyer back out: The seller is entitled to keep the entire deposit as compensation.
- Should the seller back out: They must pay the buyer double the deposit amount.
- Importantly, the non-defaulting party can also petition the court for “specific performance” to enforce the sale.
- Caparra Penitenziale (Penalty Deposit): Governed by Art. 1386, this deposit functions as a pre-agreed penalty for withdrawing from the deal.
- If the buyer withdraws: They forfeit the deposit, but the seller cannot pursue further legal action.
- If the seller withdraws: They must return double the deposit amount, at which point the agreement is terminated, and no further claims can be made.
Key Clauses to Watch For in a “Compromesso”
A well-drafted preliminary contract should be as detailed as possible to leave no room for ambiguity. Ensure it contains the following:
- Full Details of Both Parties: Names, addresses, and Italian tax codes (Codice Fiscale).
- A Precise Description of the Property: Address, cadastral data, floor area, and any included appurtenances (e.g., garage, cellar).
- Seller’s Guarantees: A declaration of the property’s origin (provenance), a guarantee that it is free of any liens or encumbrances (like mortgages), and confirmation of its compliance with building permits.
- Price and Payment Schedule: The final purchase price, the amount and type of caparra, and a clear timeline for the remaining payments.
- Deadline for the Final Deed (Rogito): A fixed date for the final signing before a notary.
- Allocation of Costs: A clear statement specifying which party is responsible for notary fees and taxes (usually the buyer).
Carefully reviewing these points is mandatory to avoid the common mistakes people make when buying property in Italy.
Pre-Signing Checklist
- Conduct Due Diligence: Perform a thorough legal review of the property’s title and building documentation.
- Select the Caparra Type: Decide which of the two deposit types is more advantageous and secure for your situation.
- Demand Clear Clauses: Ensure all terms of the deal are described without ambiguity.
- Insist on Registration: Make sure the contract is registered with the Agenzia delle Entrate.
- Consider Notarization: For maximum security, the contract can be executed as a private agreement with notarized signatures (scrittura privata autenticata) or drafted entirely by a notary (atto pubblico).
Conclusion
The Compromesso is not just a formality; it is the most critical legal safeguard that governs the rights, obligations, and risks involved in acquiring Italian property. Vague clauses or the lack of a prior legal review can lead to expensive and stressful consequences. The best investment you can make is to hire an independent Italian lawyer to protect your interests throughout the entire process.
This post is also available in: Български
