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PROPERTY LAW
Types of ownership
Freehold
Superficial ownership (the right to build on a different
owner’s property)
Ownership
• The right to use, receive the benefits of, and dispose of a
property in the most absolute manner, within the limit of the
Law (art. 832 Civil Code).
• Any title, transfer or charge on the ownership right must done
in writing. The deed iswary) recorded in the Conservatory of
Public Records (Conservatoria dei registri immobiliari)
Co-ownership
• Defined by Law
• Ownership by various persons of a property or a group
of properties divided into co-ownership units (quote di
comproprietà).
• Consists in:
–– privately owned areas
–– rights over (ie. share in) the common areas (parti
comuni).
Condominium
• When there are more than one unit in a building there will
be co-ownership of common parts and a condominium is
automatically created.
• Normally is ruled by a rulebook (regolamento di condominio)
which identifies each unit with a number, indicates its
location and includes a complete description of the private
and common areas and the millesimal quotas, which are
calculated according to the surface of each private units.
• The decisions related to the common parts are taken with the
majority of the millesimal quotas
• Common parts may be included in the private units (main
walls, roof, foundations, façade). The privet unit stakeholder
may modify the common parts included in the private unit
with the authorization of the condominium of with prove of
the safety of the works, certified by an independent expert.
• Each co-owner has a right to use the common areas and
shares the related service charges.
Owners consortium (in development plan implementation)
• Division of the property into units of different shapes and
sizes, each with its own straightforward right of ownership
entitling its owner to build, with or without the right of co-
ownership of common parts.
• Often used for land development plans owned by various
owners (private as well as public entities).
• Each owner automatically is entitle of a quota of buildable
rights and responsible for the construction of the urbanization
works even if he did not executed the development
agreement.
• The owners’ management consortium is normally formed and
its main role is to own and manage common facilities.
• The consortium is the counterpart of the City for the
construction and the maintenance of the urbanization works.
Long-term lease (enfiteusi)
• Tenant is granted a right in rem, which can be mortgaged and
transferred.
• There are no limit to the duration.
• Tenant has the right to construct a building, grant leases and
active or passive easements for the maximum term of the
lease.
• Tenant is responsible for operating the building and paying a
consideration.
• To ensure that it is enforceable against third parties, the lease
must be drafted under a notarized form and registered in the
public records book (Conservatoria dei registri immobiliari).
• It is not often used due to fiscal reasons (subject to transfer
tax for the global amount of the fees due fo the duration of the
contract).
Rights affecting ownership
Easement (servitude)
• Is a burden imposed upon a property, for the use and utility of
another property belonging to another owner.
• Is exercised to the detriment of the property assets which
they encumber – servient land (fondo servente) – and to the
benefit of adjoining assets which they enhance – dominant
land (fondo dominante).
• As an attribute of the right of ownership, easements are
transferred with the related tenement.
• While the owner of a dominant land may, at its expense, carry
out any work required to use or to preserve the easement, it
is not entitled to do anything to aggravate the situation of the
servient land; the owner of the servient land must allow the
easement to be exercised without doing anything to restrict it.
Mortgage (ipoteca)
• Is a security encumbering the asset, which entitles the
beneficiary to a preferential right over other creditors in the
event of a forced sale of the relevant asset.
• Confers a selling right entitling a secured creditor to force the
sale of the asset offered as security in auction, even if it is in
the possession of a third party.
• Any property may be mortgaged and there is no limit on the
number of mortgages that may be created over the same
property.
Lender’s pledge (mutuo ipotecario)
• Is a right, ruled by special law, derived from the lender’s claim
for preference over other creditors not recorded in public
records before the registration of the pledge.
• Applies only when the acquisition of the property is financed
by a loan, provided that the loan agreement is executed by
notarial deed.
Pre-emption right
• Is the statutory option provided to certain public authorities or
to tenant operating business open to the public to substitute
an acquirer in a real estate transfer for purposes of general
public interest (i.e. historical value for the public authorities,
the goodwill of the operator for the private business).
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Investors Guide to Europe 2015