Buying a house: from the agent to the notary, who does what?
23.1.2023
Read Time: 3'
Any purchase-especially real estate-for it to be a good one is the result of research, perseverance, insight, and expertise in relying on appropriate professionals. What role do real estate agents and notaries play in buying and selling?
The figure of the real estate agent in buying and selling
The real estate agent is often the first interlocutor to whom a potentially interested buyer depends. There is increasing homogeneity among real estate agents worldwide. In recent years many international agencies have been implanted in Italy, mainly aimed at the brokerage of high-end goods, which has further favored the harmonization of the activity and customer relations.However, there remain some peculiar characteristics that need to be duly evaluated.
A real estate agent, under Italian law, is a mediator, "one who brings two or more parties together for the conclusion of a business deal, without being linked to any of them by relations of collaboration, dependence or representation." There is a requirement to be registered in a special register after passing a qualification examination. Agents who conduct business without being registered are liable to an administrative fine and, far more relevant, are not entitled to payment of commission or any other allowance.
For the activity performed, the broker is entitled to a fee (commission) to be paid by both the seller and the buyer. Professional rates, customs, or the court in equity determine the commission. In general, however, it ranges from 2 to 6 percent but is most frequently around 3 to 4 percent. According to Article 1755 of the Civil Code, the right to commission accrues after the deal, and in the case of real estate purchases and sales, there is a tendency to identify this moment with the conclusion of the preliminary contract.
How the process of a real estate purchase and sale takes place.
Attention should be paid to any exclusive rights granted to the agent in the mandate. In such a case, the commission is due regardless of the origin of the contact with the buyer.If the prospective buyer is interested in the deal, the broker submits a purchase proposal with the essential details for the conclusion of the contract. This proposal is then submitted to the seller for approval, thus giving impetus to the contractual process that is completed with the signing of the deed.
A proposal is commonly used in the brokerage business: it addresses the possible selling party. In fact, it should be considered that such forms contain the overall discipline of the relationship that is established between the parties. With it, the potential buyer-if the proposal is accepted by the seller-obligates himself to conclude the preliminary contract, so it is necessary to pay adequate attention to the conditions and terms that are indicated since they are binding in any case.
In Italy, many lawsuits arise from inaccurate, imprecise, or inadequately evaluated proposals, so despite the pressure, there may be to not lose the buying opportunity; buyers should be much more careful, perhaps assigning a technician and a lawyer to carry out adequate preliminary checks, particularly if building abuses or peculiarities of the property are suspected (as in the case of property bound by the Superintendence of Fine Arts) or, again, problems on the title of the property (for example, in the case of previous donations or open and disputed inheritances).
In Anglo-Saxon countries, there is a much greater need for buyers to be assisted by professionals (both technical and legal) in the purchase of a property, with a preliminary phase of adequate due diligence. In Italy, habitually, the buyer relies on the agent and then, once they have come to sign the contract, on the notary. But, often, there is still time to prevent litigation, especially if sums have already been paid.
The figure of the notary in real estate purchases and sales
The figure of the notary has its characteristics in Italy, common to some civil law countries such as France and Spain, but far removed from the notary publics of Anglo-Saxon law.The notary public is a public official-his act possesses the value of a public deed, constituting full evidence up to a lawsuit even in litigation-who, placing himself in a situation of impartiality concerning the seller and the buyer, guarantees the protection and complete satisfaction of the interests and expectations of both parties.
In particular, the notary's checks focus essentially on the legitimacy of the purchase title and on verifying that no prejudicial transcripts are encumbered on the property itself, that is, that the property is not encumbered by mortgages (voluntary, legal or judicial) and that there are no other constraints, such as those arising from a seizure, foreclosure (including for tax reasons), the Superintendency or a third party's judicial application.
Another check that the notary performs is that about the urban, building, and cadastral regularity of the property that is the object of purchase and sale: in fact, the law prevents or limits the marketing of properties that present abuses or that are incorrectly surveyed in the Land Registry, both from the point of view of their classification and from the point of view of their graphic representation.
The notary is also responsible for taking care of multiple aspects related to the parties: among the main ones are the verification of the signatory powers and capacity of the parties entering into the contract, their matrimonial property regime, compliance with energy performance regulations, the tax regime to which the agreement is subject and the entitlement to any concessions.
The choice of the notary is free and left to the discretion of the parties: however, in the context of real estate purchases and sales, the choice of the notary is generally reserved for the purchasing party, being the same charged with the payment of the relevant fees.
The notary's intervention is not mandatory until the final deed of sale (the deed) is signed. However, it is strongly recommended even for the stipulation of the preliminary contract, especially if advance payments of price are involved, and to prevent third parties from claiming rights to the property after the stipulation. The preliminary can, by the notary, is transcribed in the real estate registers obtaining the so-called "reservation effect": in essence, in dealings with third parties concerning the preliminary contract, it is as if the final contract had been transcribed in the real estate registers at the time the preliminary was transcribed, thus preventing the rights of the buyer from being affected by any other sales of the same property by the seller or by any facts that the seller undergoes.
In the case of a foreign buyer: the translator and power of attorney
If the buyer is a foreigner who does not know the Italian language, it is necessary to have a translator appointed under notarial law in the presence of the notary and witnesses (if no one knows the foreign language).In addition, the Italian notarial act must be followed by a foreign language translation certified by an official translator (this can also be the notary himself if he knows the language), conforming to the Italian text.
How to remedy this if the buyer cannot participate in the stipulation? One can resort to a power of attorney, perhaps to a professional, and also obviate the issues of not knowing the language.
A good purchase results from luck, perseverance, intuition, and in relying on appropriate professionals.
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