Ipoteche giuridiche

Holmesro Image
08/25/2009 - 09:13

Does anyone understand the difference between these and ordinary ipoteche?Am looking at a property to buy and it has several of these attached to it. Does this make the buying process more complicated, or is the process for cancelling/proving the related debts are extinguished the same?Our seller has told us not to worry about them, as they are nearly at the "scadenza natura" of 20 years. Hmmm......Thanks to anyone able to help.



I will start by saying that I am not an expert on Italian mortgages/charges or law but drawing on my experience in the UK I would strongly recommend that you speak to a solicitor and clarify the nature of these charges.  With an English mortgage a mortgage or any subsequent lender's charge would be removed on sale of property as sale would only be allowed to complete once all debts repaid.  However a legal charge could have nothing to do with borrowing against the property but with regard to a dispute with another interested party.  This could be a family member who feels they have claim to the property and in England this would prevent a sale even if said family member was having difficulty proving his claim.  Given that ownership in Italy is often more complicated than in England this may suggest rights over the property that you really need to be certain of.  good luck

In reply to by karenr

Thanks KarenThe charges are registered to 3 different banks, and it looks as though there were bankruptcy proceedings in the past against companies owned by the vendor.So from your comments, though I appreciate based more on UK law, it would seem that these banks have probably attempted to claim ownership of the property to compensate defaulted loans. In which case there would be either legal proceedings or a resolution between the parties.As they were registered some time ago, I'm assuming the latter, but that noone ever registed to "downgrade" the charges over the property.Under Italian law, is this likely to be complicated to sort this out? 

 ipoteche giuridiche are enforced loans on properties due to nonpayment of debts - whether a mortgage or anything ranging from ICI, nonpaid speeding fines etc - and they do mount up.Obviously without seeing the paperwork I cant tell you what they are for - but there is a scadenza of 20 years for some debts - it depends what they are.  If there have been attempts at repossession its a different matter - Have you done the visure ipotecarie?  Your notaio should give you sound advice on these - I assume you are buying.  Your vendor should have stated in his compromesso that he obliges himself to sell the property without vincolo o peso, and this includes debt and ipoteca.  It is technically not your problem, but the vendor should sort out these ipoteche before any act of sale- otherwise you will take them on.  The notaio should retain the amount of the debt from the vendor until he has proof that the debt is paid.  Also, you need to do visure not only on the property itself, but also on the vendor to see if there other debts outstanding. 

Many thanks Ram for your comments - will ask the vendor for the visura ipoteche, we haven't got a Notary yet pending resolving these issues. When we appoint one, will definitely make sure they intend to act as you suggest.Re your last comment - the vendor is actually a company rather than an individual. Can we do a visura on a company? And do we need to do visure on previous owners?

 Now it gets more complicated - do you know which sort of company it is?  If its an srl - its the equivalent of a limited company - and to be honest I dont know if there is a 20 year limit on company debt - The owner probably wont pay to do the visure ipotecaria - they cost!  It also means that you will need the legal representative of the company to sort out these things.  If its not an srl but a società semplice the owners are personally liable for debts.

Ram - many thanks for your most helpful replies.The company is an Srl, sadly.From the paperwork we have, it seems the vendor of the property inherited it many years ago, transferred it into his family business (an srl), which got into trouble. Hence the ipoteche giuridiche, I guess.Srl No1 went into liquidation, and the vendor (as liquidator), transferred it to Srl No2, where it currently resides. This was a private act, but agreed with the principal lender who had previously tried to repossess the property.The vendor is the amministratore delegato of Srl No 2.The problem I have is that our lawyer has looked at the paperwork to date and said that there will be a big legal bill if we want her to carry on with the acquisition, plus the cost of visure as you say, and geometra searches.Consequently, we only want to go ahead if we can be reasonably comfortable that the process won't hit an iceberg. Because, understandably, we will not want to complete unless we can be more or less 100% sure that there are no valid claims over the property (looking around this forum, I see plenty of warning signs about liabilities following the property rather than the people).GIven the situation, is it likely we can achieve such a certainty, or better to give up now? 

 It all depends whether the debt is greater than the amount you are paying for the property.   If not, a notaio should be able to sort something out - retaining the outstanding debts to be paid off on the day of the act - but it will require the agreement and presence of the outstanding creditors, and the agreement of the vendor - who seems quite happy to let everything slide.  It is also possible that you will need a judges decision to allow the sale of the property - in which case it could take time.  If the value of the property is less than that of the debts - a judge can allow the sale, with the agreement of the creditors whereby the sum realised goes to pay the creditors.  Usually, a vendor will want an underdeclaration to allow him to bung a fair bit of cash in his pocket - not worth the risk.  If you are reasonably sure that the vendor is being honest about how much is outstanding and isnt hiding anything you can edge forward at least paying for all the visure which will confirm whether he's telling the truth.  If the debt is less than the property is worth, as long as the vendor plays by your rules, theres no reason why you cant go ahead.   Id also ask the lawyer to give a detailed estimate of costs and the 'big legal bill' - if the vendor plays ball there is no reason why you should be faced with a large bill - most of what the lawyer will be doing will be done by a good  notaio. 

 I haven't really got much to add, but I agree with ram in that this is the responsibility of the vendor, not the buyer, to clear. So you shouldn't any a large legal bill in my opinion.According to telemutuo.it, only a judge can remove the ipoteca as long as the creditor declares that any outstanding sums have been paid. It can become more complicated if the money needed to pay the debt will come from the sale of the property. In this case, the creditor/s should be present at the rogito and sign something at the time to say all debts have been paid in full. This document, which the notary can draft and prepare, can then be used to obtain an order from the judge for cancellation of the ipoteca, usually with the help of a lawyer. Then the site says "tutte le spese relative alle procedure, piuttosto salate, resteranno a carico del debitore" - all related costs, which will be fairly high, will remain the responsibility of the debtor.Personally, I think that your lawyer could be used to draft a watertight preliminary contract which states that all ipoteche must be cleared, at the responsibility and expense of the vendor, at least one week prior to completion. Any deposits paid as caparre should come with a bank guarantee, which the vendor should also have to pay for, and in the event that the ipoteche are not removed as agreed within the deadline agreed, then the buyer has full right to withdraw and receive all sums paid back (possibly also double as per laws on the caparra, which would cover any legal costs you had to sustain to draft the watertight preliminary etc).Chances are the vendor wouldn't agree to this, in which case I'd walk away.Maybe I'm being naive but I think the lawyer could be used here to force the vendor to sort out the ipoteche rather than have her take care of it...

Thanks to you both for taking the time to provide your thoughts. Some very helpful suggestions that will discuss with lawyer/vendor. Gives me some hope that the situation can be resolved.

 I have just completed on one of these sales - it was a long process but came out right in the end.  The client wanted to buy one particella from a landowner (farmer) with over 80 hectares.   He has ipoteche up tot his eyeballs.   The judge gave a preliminary ruling on how much the property should be sold for, and the creditors informally agreed.  A second udienza, and the judge and creditors made is a formal judgement and the sale could go ahead.  On the day of the act the payment was made direct to the creditors in the way laid out by the judge, with the owner getting nothing.  The notaio and the judge liaised before the act so there was  no need for the creditors to be present - the cheques were made payable direct to the creditors and the notaio hot footed it to the judge with teh cheques immediately after the act, got it OK'd and then registered the act.  Not that Id want to do one a week, mind you, but it is possible!