Prelazione being exercised - HELP please.....................................

La Dolcevita Image
02/19/2011 - 04:26

Where do I begin.................We find ourselves exactly where we didn't expect to or want to be.  In May last year we signed in front of the notaio for our beautiful plot of land which comprises 7500 sq metres of agricultural land with a small rustico on it.  Our plans are to build a new house on one part of the land (building permit to be released in 2 weeks) and at some future stage restore the rustico.  We used an italian lawyer as we wanted to make sure every i was dotted and t crossed.  So far so good............... 2 weeks ago we had an email from our vicini saying that they wanted to talk to us as they wanted to exercise their right of Prelazione unless we gave them our small rustico for a reasonable price.  We contacted our lawyer straight away who said he wasn't responsible as we'd only asked him to put together the compromesso - totally untrue but we have no proof as it was a verbal conversation in his office - where he told us we'd done the right thing working with a lawyer and that we wouldn't find ourselves in a mess!!!  He's dug his heels in and is adamant it's not his problem unless we ask him to open a new file (pay him more money)  So lesson learnt make sure you tell the lawyer what to do...............hard lesson to learn but true Our architect (who we trust implicitly) met with the owners yesterday and they want the rustico and 3 terraces for 15000 euros - the rustico isn't so much the problem it's the land as it completely changes the views/dynamics of our property - we're asking more and won't give as much land.  Our neighbours are an investment company who have 2 beautiful properties on the land they rent out and a massive vineyard - the owners are 2 wealthy business men (recently joined by a third) who we know don't work the land.  The investment company then has a sub company owned by the 2 daughters who we're unsure whether they work the land Our understanding is that in order to exercise their right 50% of the owners need to be working the land  I have several (hundred) questions which I'm hoping someone may be able to help with:- How do we begin to unravel all this??????? How do we find out if the owners are working the land? Do you think they may have no right at all and are bluffing? What are the other "rules' of prelazione besides 50% need to be working the land? If we decide not to sell (and we're really undecided on this) what happens when the prelazione is exercised - how long does it take and we know they have to give us what we paid plus expenses but what are these expenses and can we include our architects fees etc And anything else that anyone thinks might be useful..... we know we're being blackmailed and in reality we'd be happy to sell the rustico and a small bit of land in front of the rustico so we could get a win win - I guess it's being able to establish if they do have a right in the first place etc etc.  We're in the UK so someone challenged in terms of distance - we do however have our amazing architect who is going beyond the call of duty Thank you for any suggestions you can offer 



..remember that they have to prove their right to prelazione and that they should be "coltivatore diretti". It was the sellers job to notify the confinants about the sale sending a raccomandata at the time of the stipulation of the preliminary contract (before the sale), so your laywer is half right (a good laywer would probably have asked the seller, if letters to the confinants had been sent). If they have their right, they can buy the land for the same price as you have paid, no extra fees included - and you should of course sue the seller for the damage. To be able to exercise the right to prelazione the law says that the confinant must be "coltivatore diretto". In assenza di affittuari (o mezzadri) sul fondo posto in vendita, il diritto di prelazione spetta al coltivatore diretto, proprietario dei terreni confinanti. Questo non deve essere venduto, a sua volta, fondi nei biennio precedente (per un imponibile superiore a 1.000 lire) e deve aver coltivato il proprio terreno negli ultimi due anni direttamente o con l'aiuto dei familiari. That means that only the land owner can exercise the right, not the daughters (and not an investment company). But there are a lot of twists to the law, you may try the CAA or CIA office nearby to see if they can direct you to somebody who can clarify the situation in your case. First of all I'd go to the seller, though. It's his problem, as the sales contract will be voided. Tell him that you're going to sue him if this thing goes through, and I'm sure he'll do all the necessary research for you.... Anyway, they would need to go to court before May, the right to claim terminates one year after the sale. If you want to keep everything, I'd just sit back and wait for seller and claimant to sort it out. If you want to sell a bit of the land to them, stand on your price. Good luck

We had a similar situation regarding a piece of agricultural property adjacent to our's that we were purchasing a few years ago. We attempted to get the two neighboring agricultural property owners to sign waivers, however only one agreed. A local friend took us to the area ag office where it was determined that the non-agreeable neighbor was not registered as a farmer and therefore had no rights of prelazione. Would suggest beginning with a visit to your local ag office to determine the legal status of the neighbor as it relates to being a legitimate, registered farmer.

Thanks for the suggestions - it doesn't help that the people we are dealing with are an ex mayor of one of italys biggest cities and a consortiuum of his pals!!!  David and Goliath keep springing to mind! We're still trying to establish the facts at the moment - is the CAA or CIA the same as the local agricultural office - that sounds like a good place for us to go next.  One of the owners of the sub company is in her 70's and I'm sure I read somewhere that 50% of the owners must be cultivatore diretti and under the age of 70 - so that rules her out if that's the case - (plus she lives a couple of hundred miles away) so it's just the other one.  We'll get that checked out next week I'm not sure that we could go down the route of suing the original owner even though I know that's what happens in Italy- he had to sell due to ill health as he could no longer farm (we know many people that know him and we found this out through them not him) - he has no grasp of the real world and I'm not sure if I could live with myself if he had a heart attack. I think it will depend on what our costs are in terms of architect fees etc

Yes the CIA or CAA is Centro Assistenza Agricola or perhaps you have a Coldiretti nearby. They may have a legal advisor, or at least be able to give you the name of some laywer/notaio who is competent in the question. I can see that you feel squeezed, but your "vicino" still have to go to a judge to exercise their right against the seller, so they have to take action. And that doesn't mean that they will then necessarily be able to buy only small parts of the land.. If you don't really want to sell parts of the land, I'd just tell them to talk to the previous owner (or his laywer) about this. You should have a talk with this laywer as well, it is the only way of knowing if they have considered this problem and followed the rules during the sale. But what a nuisance..

I am really sorry about your plight, and even more that your Italian avvocato has dumped you in the shit. However - I do think at this stage you need a red hot lawyer on your side - maybe your trusted architect could intoroduce you to somebody? Prelazione can be excercised on other bases than 'agraria' (which is the one you have been considering, all about coltivatore diretto ecc) - but the 'status' of the land you bought has an influence (I think - I'm not a legal eagle). Having said that I'm not a legal eagle I can also go on to say that I'm not at all convinced by Sablainico's position that it is the seller's problem. For sure, when I have been selling agricultural land, my notiao has advised me - as the seller - to make available written assurances from any entitled neighbours that they won't excersise their rights - but I remain with the impression that this was a voluntary act on my part. The written 'nulla osta' covered me, and was an assurance to the buyer - but IMO it simply covered me (the seller), and it in no way meant that the buyer didn't need to ask the question.  I think it would perhaps be useful to you to discuss this stuff with the notaio who registered your act. No doubt the notaio will say it 'isn't their problem' - who knows, maybe they are in cahoots with your evil avvocato - but it does appear on the basis of information posted - that you are about to be shafted, but I do hope it doesn't come to that. Best of luck, and I hope your Dolcevita comes true despite this setback.

Thanks Fillide - and our Dolcevita will come true - maybe not this time but it will..............we were expecting many challenges along the way but not this one that's why we had a lawyer!!!  If we end up losing this land and it truly is an amazing plot with a sea view (in the far distance!!) views of the medieval town and the alps, and a stunning olive grove, I've already reconciled in my mind its because there will be something even better down the line!!!  And this time we'll do it ourselves.  We're not going to roll over on this one by any stretch of the imagination we're just aware that a lengthy court battle could wipe us out/tie us up for years - so if necessary we'll cut our losses and move on

if your land is agricultural, the only right of prelazione which can be exercised is agricutlural.  You say you were planning to build on a lot of 7500, so its possible it has been rezoned and is not agricultural any more??  If it is agricultural your neighbours must be either coltivatori diretti or an azienda agricola at the time of the sale.  They have the right to buy within 12 or 18 months and its either all or nothing - at the price you paid, plus any money you have spent in the meantime improving the 'fondo' .  thats it - there is no other option.  They cannot pick and choose what they want to buy.   So your port of call is to find out if your neighbours are an azienda agricola or a coltivatore diretto.  Basically you should ask at your CCIAA or ask around - if they have another job they cannot be one of the above.  Then bear in mind that the land must be confinant with yours.  If the vineyard is rented out and not confinant there is no right of prelation from the 'rentee'- As for how you ended up in this mess - I blame your lawyer and your notaio as well as the seller.  Its basic pratcise to check automatically for prelazione when you sell agricultural land.   The idea that yoour seller is entirely at fault though is wrong.  They should not have sold the land with debt, problems etc - but prelazione is not mentioned anywhere usually - and if it is the notaio should have queried it.   You will be hardpushed to get your money back from the seller.    However, you do need a sharp formal letter from a lawyer to the neighbours, at least to find out why and how they want to exercise the right of prelazione.   

Thanks Ram - The company is definitely an azienda agricola.  We have the title search.  There are 2 owners of the azienda and we are fairly sure they are their as directors but not as land workers themselves - one is 75 and lives 150 miles away away the other is in her mid 40's and lives about 15 miles away.  Both are from very wealthy familys.  So if they individually earn money from another source/have another job does that mean they can't exercise their right?  If that is the case how would we find that out - is that something we could ask the notaio to do through a search on their codice fiscale? I'll double check to see if the land has been rezoned If they do exercise the right - from what you're saying we get all the money we paid and they have to buy everything - do we get all our taxes back/notaio fees etc then as the sale would be null and void?  So I'm guessing the archiects fees/geometra fees etc would be lost. Also is it us that they take to court or the seller (or both) and do you have any idea how long the process takes as in - is it over quickly?

I do know for a fact that you can have another job on a 'libero professionista' basis even if you're a Coltivatore Diretto because we needed to know for ourselves. Being a Coltivatore Diretto must occupy the majority of your working hours though so it need to be your main occupation. I suspect (although we didn't specifically ask this question) that you can't be an artigianale or a commerciante or various other 'professions' at the same time as being a coltivatore diretto as they all seem to be mutually exclusive. Also, to be an azienda agricola, there must be a coltivatore diretto working the land but s/he can be employed  by the azienda and not necessarily the owners themselves. Think there might be different rules around this for Prelazione: "l diritto di prelazione spetta anzitutto al coltivatore diretto (o società agricola in cui almeno la metà dei soci è coltivatore diretto) che conduce in affitto, da almeno due anni, il terreno offerto in vendita (art. 8 della legge 590/1965). Solo se il terreno non è affittato a un coltivatore diretto (o società agricola), hanno invece il diritto di prelazione i coltivatori diretti (o società agricole in cui almeno la metà dei soci è coltivatore diretto)  proprietari di terreni confinanti (art. 7 della legge 817/1971). In entrambi i casi non hanno diritto alla prelazione gli imprenditori agricoli professionali." All info was from CIA as we had some specific questions regarding our situation.

The maximum age for prelazione is 70 years old, so one of the owners is now ruled out. If you already have a project approved for the land, then the costs of obtaining the permissions with the associated professional fees should be included in the price they would pay, as far as I know.