48 | Investor Guide to Europe 2014
Î
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).
aCQuISITIon PRoCESS:
KEY STaGES
Foreign investors wishing to carry out real estate transactions do
not need any prior authorization.
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negotiations
•
As a preliminary step, a non-disclosure agreement is proposed
by the seller/agents in order to allow access to the property,
information and documentation (not compulsory).
•
The would-be purchaser issues a letter of intent which may be
indicative or binding (not compulsory).
•
Discussions are usually pursued within the frame of a preli-
minary agreement providing for an exclusivity period during
which the due diligence exercise is carried-out and at the
expiry of which the would-be purchaser is expected to confirm
its initial offer.
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Preliminary contracts
•
Preliminary contracts provides for the terms and conditions
of the sale whereas the final transfer remains subject to the
fulfillment of certain conditions.
Bilateral undertaking to Sale and Purchase agree-
ment (
compromesso di vendita
)
•
Is the reciprocal undertaking to sell and to purchase where
both parties are committed to transfer the property.
•
The transfer remains subject only to the fulfillment of condi-
tion precedents.
•
It may be recorded in the public records to prevent the seller to
sell to any other party. Recording is mandatory in the off-plan
preliminary agreement used in the construction business.
•
If breached by the vendor it may trigger a court decision with a
compulsory transfer of the asset or the payment of the double
of the deposit.
option to buy (
Opzione di acquisto
)
•
Is the bilateral agreement or the unilateral declaration granting
one party the option to buy a real estate asset. It may be
formulated as option to a preliminary agreement or option to a
final transfer, according to the wording used.
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Deed of sale
•
Is the deed according to which the ownership of a property
is transferred from the seller to the buyer; it is necessarily
notarized and usually it is the fulfillment agreement of the
preliminary contract.
•
There is no re-negotiation of the terms and conditions of the
sale which have been agreed at the stage of the preliminary
contracts.
•
The sale shall be registered recorded in the public records book
(
conservatorio registri immobiliari
).
•
Warranties (i) for claims over the property aiming to evict the
purchaser and (ii) for hidden defects, are the two mandatory
warranties which by law are incumbent upon the seller of a real
property.
off-plan sales (
vendita di cosa futura
)
•
Used for selling buildings that have not yet been constructed.
•
The seller is committed to erect the property in accordance
with agreed specifications, price and deadline; the seller pro-
vides the purchaser with completion and defects guarantees.
•
The purchaser pays the price gradually along the construction
steps until completion.
•
At the date of the deed of sale, the transfer of ownership auto-
matically applies to the land and existing construction.
•
The seller remains liable for construction defects under ten-
year legal constructors’ warranties for structural defects.
•
Rarely used because of the risk connected with the automatic
transfer (i.e. in the event of bankruptcy of one party).
CoMMERCIaL LEaSES
Leases of buildings used for commercial purposes are covered by
specific provisions codified in the Civil Code.
Certain provisions of the commercial leases may be freely agreed
by the parties, such as:
- the initial rent (which can not be variable)
- the service charges.
However, commercial leases must comply with some mandatory
rules.
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Duration: initial term of the lease
•
May not be less than 6 + 6 years: the parties may agree on a
longer term.
•
Leases longer that 30 years must be recorded in the public
records book (
conservatorio registri immobiliari
).
•
Unless otherwise provided, the lessee may terminate the lease
on expiry of each six-year period.
•
The lessor may not terminate the lease at the expiring of the
first six year period unless needed for restructuring of the
building.
•
At any time the lessee may terminate the lease for grave
motivations (
gravi motivi
). This clause ma not be mitigated or
voided in the lease contract. The motivations (i.e. liquidation of
the company, closing of the regional office, grave crisis in the
market sector etc.) are evaluated by the court if the termina-
tion is challenged.
