Italian Legal Assistance
1.5K views | +0 today
Follow
Italian Legal Assistance
Our Law Firm is distinguished by a highly effective service that is able to guarantee a readily response to the clients’ requirements and can rely on a client-lawyer relationship characterized by the ulmost confidentiality and clarity of communication.
Curated by vemlegal
Your new post is loading...
Your new post is loading...
Scooped by vemlegal
Scoop.it!

What is the “Inheritance Declaration”?

What is the “Inheritance Declaration”? | Italian Legal Assistance | Scoop.it

Inheritance Declaration (Dichiarazione di Successione) is the first document to be presented to start the succession procedure...

vemlegal's insight:

The “Dichiarazione di Successione" must be submitted within one year of death of the deceased.

 

Such document must be done in the form obtained from the Revenue Office and submitted at the local Inland Revenue Office where the deceased had the last residence.

 

In the case the deceased has never been an Italian Resident, the Central Tax Office in Rome will be the competent Authority to receive such Declaration. 

 

 

<<<Required documents>>>

 

The documents to be included to the inheritance declaration are:

1. Atto Notorio: this document has to be signed in front of a Public Notary by the heirs;

2. Death Certificate;

3. Copy of heirs’s passports and their Italian Fiscal Codes;

4. Copy of the deceased passport and the Italian Fiscal Code;

5. Family certificate of the deceased;

6. The extract of the Cadastral Register;

7. Receipt of the Modello F23, that is the evidence of the payment of the taxes;

After that will be necessary to deposit the receipt released by the Tax Office in the competent Cadastral Office.

 


-> Those who are obliged to submit the declaration
 

The following persons are obliged to submit the declaration of inheritance:
 

- the heirs and legatees, or their legal representatives;
 

-  those in possession of the property, in the case of absence or declaration of presumed death;

- the administrators of the inheritance;

- the trustees of the vacant succession;

- the executors of the will;

- the trustees.
 

If more than one person is obliged to submit the declaration it is sufficient that it is submitted by just one of these persons.

 

 

-> Who has to pay and how much has to be paid
 

The heirs and legatees who benefit from the following property and rights shall pay this tax:
 

- real estate and rights from real estate.

 

The evaluation of the property is done by multiplying the cadastral revenue by the relevant updated coefficients;


- shares in the capital of a company (the value is given by the net equity);


 - bonds (excluding government bonds);


 - companies (the value is given by the net equity without evaluating immovable goods and good will);


- credits and money;


- movable goods (jewels, furniture).
 

The taxable base is made up of the total net value of the hereditable assets, that is to say of the value of the property and the rights object of the inheritance, net of liabilities and deductible expenses.

 

The inheritance tax is determined by the office which applies different rates according to the degree of kinship of the heir.

 

 

For further information visit: www.vemlegal.com

 

Photo credit: PhotoXpress.com

more...
No comment yet.
Scooped by vemlegal
Scoop.it!

Immigration: entry visa and residence permit

Immigration: entry visa and residence permit | Italian Legal Assistance | Scoop.it

Here is a brief guide about the entry visa and residence permit allowing the access and residence in Italy.

vemlegal's insight:

Avv. Marco Mendola: access and stay of foreigners in Italy is allowed after ascertaining some specific requirements. Here is a brief description.

 

 

The arrival in Italy is allowed only to foreigners who:

- enter through a border crossing point;

- are in possession of a passport or other travel document recognized as valid for crossing borders;

- have an entry visa or transit, if required;

- are not reported to the Schengen Information System for the purposes of refusing entry;

- are not considered a threat to public order, national security, public health or the international relations;

- demonstrate to have enough financial resources for living in Italy and have at their disposal the necessary sum to return, or the return ticket.

The foreigner without even just one of these requirements may be refused at the border. Such measure can be adopted even in the presence of a regular entry visa or transit.

 

1) Visa

The visa is a special sticker applied to the passport or other valid travel document of the applicant. It is an authorization granted to a foreigner for entry in Italy or in the other Schengen countries.

 

To obtain the visa the foreigner must indicate:

- purpose of the journey;

- means of sustenance for the journey and the stay;

- housing conditions.

 

The visa is issued by the Italian embassies and consulates in the country of origin or permanent residence of the foreigner. It is not possible to issue the visa or the extension, to the stranger who is already in Italy. Citizens of some countries are not obliged to apply for a visa for stays no longer than 90 day for tourism, mission, business, invitation and sport reasons.

 

* Reasons Given
They are 20: adoption, business, medical, diplomatic, accompanying family member, sports competitions, invitation, self-employment, employment, mission, religious reasons, re-entry, elective residence, family reunion, study, airport transit, transit, transport, tourism, working holidays.

 

* Types of visas

Type A: airport transit
Type B: transit, it has been abolished following the entry into force of Regulation (EU) No. 265/2010 of the European Parliament and of the Council of 25 March 2010.
Type C: for short stays up to 90 days (Uniform Schengen Visa) with one or more entrances.

Type D (National): For all stays of long duration (more than 90 days) foreigners must always have the visa, although citizens of countries not subject to a visa requirement for short stays. The D visa is valid for entry and stay in Italy more than 90 days (for one or more entrances) and allows the holder to travel freely within the Schengen area for a period not exceeding three months in any half-year.

 

2) Residence permit

Foreigners who intend to stay in Italy for more than three months must apply for a residence permit.

Who arrives in Italy for the first time, within 8 days, must apply for permission to stay. Who is staying in Italy for a period of less than 3 months for reason of tourism, invitation, business and study, simply need to fill out the declaration of presence at the border or at the police station.

Who is already in Italy must request a renewal at least 60 days before the deadline.

The validity of the residence permit is the same as the entry visa:

- up to six months for seasonal work and up to nine months for seasonal work in the fields that require such an extension;

- up to one year, for study reason or for documented professional training;

- up to two years for self-employment, permanent employment and for family reunions.

 

3) EC residence permit for long-term residents

Since the 8th January 2007, the residence card for foreign has been replaced by the residence permit for long-term residents.

This permit is permanent and can only be claimed by those who have a residence permit for at least 5 years.

The EC residence permit cannot be issued to those who are dangerous to public order and the national security.

 

With the EC residence permit, you can:

- Enter Italy without a visa;
- Be employed;
- Take advantage of the services and benefits provided by the public administration;
- Participate in local public life.

 

The foreigner holding a EC residence permit issued by another Member

State may stay in Italy longer than 3 months, for:

- Pursue an economic activity as a regular employee;
- Study reason or professional training;
- Living in Italy by showing that he has sufficient means of subsistence and by signing an health insurance for the entire period of stay.

The law foresees prohibitions and exceptions of the EC residence permit.

 

 4) Citizens of the European Union

EU citizens who intend staying in Italy for a period of less than three months may present at the police station a declaration of presence on the national territory. The office will return the copy, duly stamped, which will be produced whenever required by the police.


For periods longer than three months EU citizens must register at the municipality of residence. For registering it is necessary submit the documentation attesting to be employed, or studying or training. Otherwise, you must prove to have enough resources to live and being holders of an health insurance.

 

For stays longer than three months, any non-EU family members of EU citizen must apply for a residence permit. After five years of continuous residence, the non-EU family members of EU citizens will be able to ask the EC permanent residence permit for family members of EU citizens.

 

 

For further information visit: www.vemlegal.com

 

 

Photo credit: PhotoXpress.com

more...
No comment yet.
Scooped by vemlegal
Scoop.it!

The European Divorce and "Express Divorce"

The European Divorce and "Express Divorce" | Italian Legal Assistance | Scoop.it

The EU Regulation n. 2201/2003 called “New Brussels II Regulation” governing the EU divorce.

vemlegal's insight:

Avv. Marco Mendola: the growth of the touristic and commercial trade and the migration of EU citizens within the member countries has led to the continued increase of families linked to different cultural groups.

 

These events, which have changed the society of the last two decades, have been the reason of several EU measures which gave rise to a real "family law community."


In this direction, one of the main EU act is Regulation n. 2201/2003 called "New Brussels II Regulation", which governs the jurisdiction of the Member States and the recognition and enforcement of judgments in matrimonial matters, including divorce decrees and the parental responsibility.

 

The art. 3 states a common procedure to all EU countries except Denmark. It provides the criteria to solve the first problem that arises in the case of separation or divorce of "international couples", that is the identification of the country where the judgment can be rooted.

 

Thus, it is established that they are competent to decide on matters relating to divorce, legal separation or marriage annulment spouses, the courts of the Member State:


• where the spouses are habitually resident;


• where the defendant has his habitual residence;


• if the spouses no longer resides in the same Member State, the courts of the Member State where the spouses had their last habitual residence if one of them still resides there;


• in the event of a joint application, the courts of the Member State in which one of the spouses resides;


• in certain circumstances, the courts of the Member State in which the applicant habitually resides;


• of which the spouses are nationals.
The parties may not choose a court other than those so identified.

 

In the case the parties, for the same procedure, have introduced the matter to the courts of different Member States, the divorce will be pronounced by the one that was referred earlier. That is, if a court is seised it retains the jurisdiction even if it is subsequently brought before another one. The latter, however, must refuse to act.

 

Finally, the art. 7 of the same Regulation provides the criteria for identifying the residual jurisdiction. Indeed, if no court of a Member State has jurisdiction according to art. 3, 4 and 5 of the said Regulation, the competence of each Member State shall be determined by the law of that State.

 

Once obtained a divorce decree by the Community judicature, the art. 21 of the same act governs the recognition by a Member State in which did not took place the proceedings.

 

Well, it is provided that does not require any further procedure for updating the inscriptions in the marital status of a Member State as a result of a divorce, the legal separation or marriage annulment given in another Member State, against which no longer appeal lies under the law of that member State.

 

Therefore, the interested parties may request a transcript of judgments in civil status registers

 

However, the art. 22 identifies a number of reasons why you cannot give rise to recognition of the aforementioned decisions.

 

That is in cases where such recognition is manifestly contrary to public policy of the requested State, or when the spouse was prevented to arrange for his defense, unless after he accepted the judgment unequivocally.

 

Yet, when it is irreconcilable with a judgment given in proceedings between the same parties in the Member State addressed, and finally, if the decision is incompatible with an earlier judgment between the same parties, given in another member State or in a third country, if the earlier judgment fulfills the conditions necessary for its recognition in the requested State.

 

Another worth mentioning is the so-called "express divorce". Indeed, for every European couple is possible contacting a foreign court to put an end to a marriage made in Italy.

 

Indeed, the Italian legislation, doctrine and jurisprudence have recently introduced interesting innovations, that allow the Italian couples, under certain conditions, to use the so-called "express divorce", and take legal action in other European countries to close permanently and in a short time.

 

This allows Italian couples to get divorce in about 6 months, compared to 5 years occurring in Italy for the entire procedure, which involves first obtaining a judgment of separation and then the start of the procedure intended to get a divorce.

 

For further information please contact www.vemlegal.com

 

Photo credit: Stockfreeimages.com

more...
No comment yet.
Scooped by vemlegal
Scoop.it!

Another new tax called IVIE. Doubts of constitutionality.

Another new tax called IVIE. Doubts of constitutionality. | Italian Legal Assistance | Scoop.it

Avv. Marco Mendola: Starting this year, the Italian taxpayers have to deal with a new tax that affects who owns real estate properties abroad.

 

As a result of the decree Salva Italia, which introduced the IVIE, has been also taxed the properties situated outside the national borders.

 

-->What is IVIE

 

This is a tax similar to the IMU but for homes situated abroad. It affects both Italians than foreigners resident in our country and paying taxes here.

 

-->How do you calculate the IVIE

 

The tax is calculated differently to the IMU. In fact, the amount is determined by applying the rate of 0.76% to the tax base, represented by the value of the property, as inferred by the act of purchase or by contracts or, if this value is not set, calculating by the market value in consideration of the place where it is.


Instead, in the case where the property is located in one of the countries of the European Union or in countries belonging to the European Economic Area, you can take into consideration the same value considered for the performance of local taxes.

 

However, in four European countries, Belgium, France, Ireland and Malta, the reference value is not the cadastral value but the purchase price. Finally, if this is not available, we use the market value or the average income, expected by local laws, multiplied by the IMU coefficients.

 

It is provided a reduced rate of 0.4%, similar to what happens to the IMU, for property used as a principal residence, by those working abroad for the Italian government and only limited to the period in which this work is carried out. Moreover, even in this case, the similar deductions of 200 € and 50 € per child under 26 years, usually resident in the household.

 

If the amount is less than 200 euro tax should not be paid.

 

This year we start paying the amount due for the year 2011, and the law clarifies that it is due in proportion to the share of ownership and the months of the year in which possession has lasted. The month in which possession has lasted for at least fifteen days shall be counted as full.

 

With regard to the method of payment, validation, assessment and collection, penalties, refunds, and litigation the rule refers to the law on personal income tax.

 

In order to avoid the double taxation, the law states that from the tax due to the taxpayer may deduct a tax credit, up to the amount, equal to the value of any property tax paid in the State where the property is situated. Basically, if the property tax paid abroad is higher than the new tax, the owner does not have to pay any tax in Italy.

 

--> Doubts concerning IVIE

 

Despite the tax calculation is much simpler than IMU, this type of taxation involves some perplexity. In fact, in some cases it is difficult to trace a possible property of an Italian taxpayer in a foreign country. But even in the case of a confirmed property, there may be cases of purchase deeds difficult to translate or not showing a price, or even difficult to assess on the basis of market values.

 

Furthermore, it is also unfair to impose a tax on people who are in Italy for work reasons and, most likely, already in their country of origin pay a tax for the house and where is living their family or that is uninhabited and is not certainly a source of income.

 

Not to mention that foreign countries can see as an interference the fact that Italy is going to impose a tax on their territory.

 

Another aspect that should be taken into account and for which are expected explanatory circulars from the Income Revenue, is that many overseas properties were purchased many years ago, so in the deed of sale is given a value significantly below the current market value, and besides in foreign currency.

 

Finally we have to consider that one of the weakest points of this tax is that the tax is levied only on individuals, not to companies. In this way you can be excluded from the taxation, assigning the property to a society.

 

 

For further information please visit our website: www.vemlegal.com

 

Photo credit: Stockfreeimages.com

 

more...
No comment yet.
Scooped by vemlegal
Scoop.it!

Property consequences of the death of the divorced spouse

Property consequences of the death of the divorced spouse | Italian Legal Assistance | Scoop.it

Avv. Marco Mendola: the main financial consequences arising from the death of the divorced spouse focus on the issues related to the inheritance rights of the surviving divorced partner and especially to the right to obtain the survivor pension.

 

Instead, in relation to the work activity of the former spouse, regardless of the death, a clarification must be made regarding the claim to obtain a part of the severance pay received by the former partner.

 

 

- Succession of the divorced spouse

 

As it is known, a judgment of conjugal separation allows the separated spouses to maintain the same inheritance rights of the not separated spouses, except in the case in which a partner was recognized guilty of the separation by the court.

 

In this case, to such spouse can be recognized a living allowance only if at the death of the former partner he was enjoying of the alimony paid by the deceased spouse.

 

Otherwise, in cases of divorce. Indeed, considering that the marriage bond is completely dissolved, the former spouses lose their mutual inheritance rights. However, an exception to this rule is made in the case the deceased spouse had pledged to pay the alimony (Art. 5 L. 898/1970).

 

In this case, the surviving divorced partner may have the right to obtain a part of the survivor pension.

 

Further, if the surviving spouse, besides having right to the alimony according the divorce judgment, is in state of need, the court may fix a periodic sum to be paid by the inheritance (art. 9 bis L.898/1970). This as long as the former surviving spouse has not been paid the alimony in one single time.

 

 

- Survivor pension

 

The right to the survivor pension for divorced spouse is ruled by the art. 9 L. 898/70, as amended by L. 74/87. According such legislation the divorced spouse is entitled to receive the survivor pension to the occurrence of the following requirements:

 

--> must be the holder of an allowance recognized in the divorce decree. As long as the divorce judgment did not fix a sum for alimony paid in one single time. Indeed, the law provides that in such cases "cannot be offered any future application for economic content", then even claiming a pension;

 

--> must not have remarried;

 

--> the work activity, from which the pension arises, must be started before the divorce decree.

 

In the event that the former deceased spouse has remarried with a person who is having the aforementioned requirements for the pension, it will compete with the former spouse to receipt the sum.

 

It is to the court to quantify the portion which will be divided the survivor pension between the former divorced spouse and the current surviving one.

 

It will be taking into account not only the duration of both marriages, but also of other circumstances, such as economic conditions and the state of need of current spouse and former spouse.

 

In relation to the duration of the marriage must be take into account the entire period in which the spouses were related by marriage, thus including the period of legal separation and not only that of actual cohabitation.

 

 

- The severance pay in case of divorce

 

Finally, always in relation to the work activity of the divorced spouse, we can conclude by describing what the law requires in relation to the right to a share of the severance.

 

In this case the right of a former spouse comes from art. 12 bis of the L. 898/1970, which provides that the spouse against whom judgment has been pronounced the dissolution or termination of the civil effects of marriage, if not remarried and has right to the alimonies, is entitled to 40% of the amount of indemnity, referring to the period in which the work has coincided with the marriage.

 

It is worth remembering that these requirements must be met at the time of termination of the work activity.

 

Finally, the divorced spouse cannot claim the above mentioned right towards the employer of the former spouse. Rather, it will be towards the divorced partner, once it has received the entire indemnity, which must invoke such right.

 

 

For further information visit our website: www.vemlegal.com 

 

Photo credit: PhotoXpress.com

more...
No comment yet.
Scooped by vemlegal
Scoop.it!

The inheritance according the Italian private international law

The inheritance according the Italian private international law | Italian Legal Assistance | Scoop.it

Avv. Marco Mendola: a brief article about how the Italian law regulates the international successions

 

With the word inheritance we mean the process by which the assets of the deceased are conferred to his heirs.

 

This allocation may be done according the will of the deceased, although within the limits of the reserved quotas granted by the Italian law to such heirs.

 

At the opposite, if there is not a will, the allocation of assets to the heirs will proceed according to the rules of the Italian Civil Code.

 

In the case of a foreign citizen who died in Italy will apply the rules of private international law.

 

In this case, the law of reference is the n. 218 of 1995, and the art. 46, first paragraph, indicates that "the succession due to death is regulated by the national law of the deceased at the time of death”.

 

However, in the second paragraph has already provided an exception, according which "a person can make an expressed declaration in the form of will to submit the whole succession to the law of the state where he resides”.

 

Anyway, such choice has no effect if the registrant at the time of death no longer resided in that country.

 

The conditions for the validity of such choice are:

 

1) the choice must be limited to the law of the country where the testator resides;

 

2) the residence must be actual and habitual at the time of death;

 

3) the choice must be referred to the entire inheritance;

 

4) cannot be prejudiced the rights of heirs resident in Italy, those who under the Italian law are entitled to receive assets from the inheritance.

 

The above general rule, that inheritance shall be regulated by national law of the deceased at the time of his death, will not find application in the cases referred to art. 50. In fact, if the succession is opened in Italy, or if there are any real estate in Italy, the Italian law will apply under the principle of “lex rei sitae”.

---------------------------------------

 

Testamentary inheritance...

 

The Italian law allows anyone to decide about how to dispose of assets when the death occurred.

 

There are several types of will:

 

- the public will, drafted by a notary and signed by the testator at the presence of witnesses;

 

- the secret will, drafted and signed by the testator and delivered to the notary in a closed envelope at the presence of witnesses;

 

- the holographic written out, dated and signed by the testator’s own hand.

 

Basically, in a cross-border situation a will is valid if it conforms to the law of the State in which it was written in, or the law of nationality or residence of the testator at the time of writing the will or death.

 

The Italian law, however, limits the freedom of the testator. In fact, our legislation requires that
at the presence of a closely family relationship with the testator, some people cannot be excluded from the inheritance. Here it is an illustrative table:

 

HEIR: Spouse

AVAILABLE SHARE: 50%

LEGITIMATE SHARE: 50% + right to live in the marital home

 

HEIRS:Spouse + 1 son

AVAILABLE SHARE: 33,33%
LEGITIMATE SHARE: 33,33% + right to live in the marital home to the spouse and 33,33% to the son

 

HEIRS: Spouse + 2 or more sons

AVAILABLE SHARE: 25%
LEGITIMATE SHARE: 25% + right to live in the marital home to the spouse and 50% shared equally among the children

 

HEIR: Only son

AVAILABLE SHARE: 50%
LEGITIMATE SHARE: 50%

 

HEIRS: 2 or more children

AVAILABLE SHARE: 33,33%
LEGITIMATE SHARE: 66,66% shared equally among the children

 

HEIRS: Spouse + parent/s

AVAILABLE SHARE: 25%
LEGITIMATE SHARE: 50% + right to live in the marital home to the spouse and 25% to the parent/s

 

HEIRS: Parent/s

AVAILABLE SHARE: 66,66%
LEGITIMATE SHARE: 33,33% to the parent/s

 

HEIRS: Without children and ascendants

AVAILABLE SHARE: 100%
LEGITIMATE SHARE: \

---------------------------------------

 

Legal inheritance...

 

In the case of absence of a will shall apply the following principles:

 

- Spouse. The spouse has the right to live in the marital house and the entire inheritance in the absence of sons, brothers and grandparents of the deceased. In the absence of children and in the presence of brothers or ancestors of the deceased the share will be up 66.66%. The 50% of the inheritance in case of presence of a child and 33.33% in case of presence of two or more children.

 

- Children. In the absence of the spouse the inheritance is up to children in its entirety.

 

- Brothers. The brothers/sisters of the deceased have access to inheritance rights in cases of absence of deceased’s children. In the presence of a surviving spouse have the right to 33.33%.

 

- Ascendants. The ancestors of the deceased have right to inheritance for a share of 33.33% in case of absence of sons and brothers of the deceased and in the presence of a spouse.

 

The percentage drops to 25% in the presence of the brothers and the spouse of the deceased.

 

The ancestors do not have right to inheritance in the presence of children of the deceased.

 

- Relatives up to grade 6. Such relatives have right to the legal succession only if sole heirs. In such cases the inheritance is divided equally among all claimants.

---------------------------------------

 

Acceptance of inheritance...

 

It is the act by which we become heirs. An acceptance may be express or tacit, this last when the heir manages the assets of the inheritance.

 

The express acceptance of the inheritance is when, in a public or a private act, the person, receiving the call to inherit the deceased the inheritance, accepts the title of heir.

 

In the event that the estate includes a real property the acceptance of the inheritance, once the formalities required by law are completed, must be recorded in land registers.

 

The acceptance must take place within 10 years.

 

 

For further information visit our website: www.vemlegal.com 

 

Photo credit: PhotoXpress.com

more...
No comment yet.
Scooped by vemlegal
Scoop.it!

Buying a house under construction: the guarantees of the Decree no. 122/2005 and the further risk

Buying a house under construction: the guarantees of the Decree no. 122/2005 and the further risk | Italian Legal Assistance | Scoop.it

A short guide to the guarantees in the purchase of a house under construction introduced by Decree no. N. 122/2005.

vemlegal's insight:

 

avv. Marco Mendola: Generally, when you buy a house under construction the seller often does not grant any negotiations on the contractual terms, imposing a quick decision and thus not allowing a reasoned reflection to the buyer, that can be clearly identified as the weak subject of the transaction.

 

 

In fact, the latter is frequently forced to make advanced payments in respect of a deal with an uncertain outcome, with the consequent risk of losing the amounts paid.

 

In this context, the Decree no. 122 of 20th June 2005 has introduced some protections, which apply to the purchase of buildings for residential, commercial, manufacturing, management and others, and includes:

-->Bank guarantee: issued to the buyer to guarantee the amounts paid in advanced.
-->Insurance policy: a ten-years guarantee to repay any damage of the property resulting from the total or partial ruin or serious construction defects.
-->Right of first refusal: to the purchaser in the case of sale by auction of the house formerly used as a principal residence, even if he has obtained from the guarantor the reimbursement of the advanced sums.
-->Rules on the deed: stricter concerning the drafting of the deed of sale and the preliminary sale agreement.
-->Solidarity Fund: to compensate partially those who have been cheated in this area before the entry into force of the new rules.

 

 

**Bank guarantee**
It is the main protection and it must be delivered to the purchaser by the builder before the signing of the preliminary sale contract. However, for the application of the guarantee there are definite objective and subjective limits.

In fact, the promissory seller must be a builder who act as a business operation and the prospective buyer must instead be an individual.

In relation to the object, the guarantee must concern a contract of sale of a house under construction. For house under construction must be understood the one for which it has been applied for permission to build and which is still to be built or the construction of which has not been completed.

 

Instead, the obligation to provide the bank guarantee does not occur when the house for sale is not completed and the manufacturer does not undertake the obligation to complete the construction. The protection also does not apply to buyers of properties at the draft stage.

 

The guarantee must be from a bank or an insurance company or other financial intermediaries. It warrants to the purchaser the return of all sums paid to the builder plus the legally accrued interest.

However, the bank guarantee can be activated only when intervening specific circumstances identifies by the law as the crisis of the builder as for example the case of the bankruptcy.

 

The non-payment of the assurance fees by the builder shall not affect the right of the prospective buyer to activate the warranty. While, in the case of non-delivery of the guarantee only the buyer may apply to the annul the contract.

The cost of the bank guarantee is obviously to be borne by the builder, but in practice it is then discharged on the final price of the properties offered to the customer.

 

 

**Insurance policy on manufacturing defects**
The second important innovation of the Decree no. 122/2005 is the obligation for the builder to provide a ten years insurance policy, with effect from the date of completion of the works, to the extent of coverage of damage from total ruin or serious construction defects.

 

This obligation is generally respected, because the insurance effective from the time of the deed and notaries generally ensure its existence. However, cannot be excluded disputes with regard to the assessment of the seriousness of the risk.

 

 

**The rules about the deed and the preliminary sale agreement**
Both in the preliminary sale agreement than in the deed of sale must be inserted several annexes and clauses, which should further protect the buyer:

a) information necessary to identify the subjects and the object of the contract;
b) the description of the property and all its accessories object of the contract;

c) the details of any planning agreements concluded in order to obtain the permission to build;
d) the technical characteristics of the building, with particular reference to the supporting structure, the foundations, the cladding, the floors, the roof, the windows and the facilities;
e) the maximum periods of execution of the construction, also possibly related to the various stages of processing;
f) an indication of the total price to be paid for the sale;
g) the details of the bank guarantee;
h) any eventual mortgage;
i) the particulars of the building permit or its request if not yet released;

l) the indication of the existence of contractors with an indication of the identification data.

 

 

**The gaps in the law**

Although the law provides new protections for the purchaser it still has gaps. Indeed, the bank guarantee only guarantees disbursements made before the deed in the event of any of the causes, specified by the law, of the crisis of the builder.

 

A series of negative events, although worthy of protection, are instead discovered: it is the case for example of the double sale by the builder, breach on the construction methods or timing of construction and also the builder's refusal to conclude the deed. Finally, the actual law does not protect the purchaser in the case of other events that cause the delayed delivery of the property.

To prevent any nasty surprise or any of these clauses which not fully protect the client, we advise the prospective buyers to contact the professionals of our firm.

 

 

 

For further information please visit our website: www.vemlegal.com

more...
No comment yet.
Scooped by vemlegal
Scoop.it!

Buying home in Italy

Buying home in Italy | Italian Legal Assistance | Scoop.it
vemlegal's insight:

Avv. Marco Mendola: the purchase of a property is preceded by several stages ending with the public Deed of Sale. Here is a brief description.

 

1) The contractual negotiations

 

Before reaching the conclusion of the final deed of sale, begins a preparatory stage called “contractual negotiations", during which the parties are engaged in some activities and acts that may have important legal consequences.

 

Such acts can largely predetermine the content of the subsequent contract of sale, but also regulate the eventual breach of contract.

 

The prescription of the public deed of sale with the subsequent transcription at the Land Register, it is necessary to make the transfer of the property, from seller to buyer, enforceable erga omnes.

 

Conversely, the deed of sale concluded in the form of private agreement would take effect only between the parties. Even worse if the transaction would took place with a verbal agreement only. At best it could lead only to the pre-contractual liability, if any party unnecessarily interrupt the negotiations come to a stage that leads to the other part of a legitimate expectation to the conclusion the contract.

 

Clearly, since the start of these initial approaches between the parties, it is advisable to be assisted by our professionals, especially to ensure you about the more technical aspects of the operation, for example the confirmation of the technical requirements of the building.

 

We will verify, in fact, that the property has been properly built and then the seller is in possession of the building permit and certificate of habitability.

 

Otherwise, if the house was built without planning permission, it is necessary to ascertain that the seller has subsequently successfully regularized the property.

 

While, if the property is a new construction, the property developer must submit the documents proving the regularity of the building. It should also be verified that there are no mortgages on the house.

 

Furthermore, in the case where the sale relates to an apartment, it will be necessary verifying the absence of debts of the seller to the building administration, otherwise, the buyer will have to answer for.

 

Particular attention should be paid if the seller is a construction company. In fact, the "package of guarantees," which came into force in 2005 sets out a series of obligations on the part of this right to protect the buyer.

 

2) The preliminary contract

 

The preliminary sale contract, or compromise, is a contract under which the seller and the buyer are obliged to conclude a subsequent Deed of Sale, establishing procedures and deadlines.

 

It serves to bind the parties for the time necessary to resolve any issues that do not permit the immediate sale. By signing this document, the parties assume the legal obligation to conclude the final contract of sale with which transfers the property.

 

If either party refuses to sign the final contract without justifiable reason, the law recognizes to the non-defaulting party three specific tools for the protection of its rights:

 

a) the non-defaulting party may apply to Court to obtain a judgment at the place of the Deed of Sale (specific performance);

 

b) in the alternative to specific performance, the non-defaulting party may apply the Court for the resolution of contract and compensation for damage suffered.

 

c) if the preliminary contract provides a confirmation deposit, if the non-defaulting party is the promissory vendor he request the cancellation of the contract and retain the deposit.

 

While, if he is the buyer, he can require the double of the amount paid. However, none of the two parts can act to obtain both the damages that the retention of the deposit, as the two remedies are not cumulative.

 

One more caution in this stage for the promissory buyer is the possibility to transcribe the preliminary contract at the Land Register.

 

This is to protect him in all situations in which his right to hold property may come into conflict with claims by third parties.

 

In fact, after the transcription of the preliminary sale contract the rights of others, subsequentially transcribed, are not opposable to the prospective buyer.

 

3) Final deed of sale

 

The choice of the notary for the signing of the final deed of sale it is generally up to the buyer, who will also pay the fees at the same time. At the stipulation both parties will exhibit as well as a personal identification documents, also the Italian Tax Code assigned by the Revenue Office.

 

Please note that such further document is required also to people not resident in Italy. Furthermore, both the seller and the buyer must inform the notary about their marital status, because the matrimonial property has consequences on the validity and effects of the sale.

 

The party may present in person at the conclusion of the contract of sale, or be replaced by a special prosecutor.

 

If the purchaser is a foreigner not in possession of an Italian residence permit, the property purchase will be possible only after verification by the notary of the "condition of reciprocity", and if he cannot speak Italian it will be required the presence of an interpreter.

 

The delivery of the property is currently done at the same moment of the conclusion of the final deed of sale, but it can happen before or after.

 

The price of the property is usually paid upon signing of the public deed, net of the deposit already paid with the preliminary deed of sale.

 

---------------------------------------

* Recommendation

Every purchase has its own peculiarity, so if you want to buy a house in Italy, please contact our law firm because our professionals will clarify all your doubts and can assist you in every phase of the sale.

 

 

For further information please contact www.vemlegal.com

 

Photo credit: PhotoXpress.com

 

 

more...
No comment yet.
Scooped by vemlegal
Scoop.it!

Corporate: shorter deadlines for payments in commercial transactions

Corporate: shorter deadlines for payments in commercial transactions | Italian Legal Assistance | Scoop.it

Avv. Marco Mendola: Italy is the first major European country to have implemented Directive 2011/7/EU on late payment in commercial transactions between businesses and businesses and public administration.

 

The deadline to transpose the aforesaid Directive was set at 16 March 2013, but the government decided to anticipate its effects since the 1st January 2013. This considering the importance of the legislation, and the opportunity to ensure companies, more specifically small and medium-sized enterprises.

 

Concerning the payments of the commercial transactions, the decree-law states a strict ruling that the legal term for payments is 30 days, which may not exceed 60 days, allowed only in special cases and in the presence of objective justifications.

 

In the event of exceeding the terms of payment­­­­ or failure to pay, the decree states a higher rate for the interest on arrears that increase from 7% to 8% higher than the reference rate set by the ECB's refinancing operations. Interest will be triggered automatically, without the need of any request from the creditor.

 

The discipline of the Legislative Decree wiall apply to contracts entered into force after 1 January 2013. Public administrations and businesses will have sufficient time to adapt to the new rules and to adopt operating procedures and accounting more functional to the new practice of prompt payment.

 

 

For more information visit: www.vemlegal.com

more...
No comment yet.
Scooped by vemlegal
Scoop.it!

Inheritance: EC Regulation n. 650 of the 04.07.2012 - The new Eu legislation

Inheritance: EC Regulation n. 650 of the 04.07.2012 - The new Eu legislation | Italian Legal Assistance | Scoop.it

Avv. Marco Mendola: from August 17, 2015 will come into force the European regulations in the field of inheritance law laid down in EC Regulation no. 650 of the 04.07.2012.

 

Until then, the member States have three years to adapt their own national legislation to the new rules, in order that it can produce its effects.

 

However, such legislation is currently not binding on Denmark, Great Britain and Ireland because they have no part in the adoption of this regulation, although this does not mean that will implement it later.

 

Let's see what the new regulation specifically provides:


• Purpose of the regulation: This regulation extends to all aspects of the civil law of succession due to death, that is to any mode of transfer of property, rights and obligations as a result of death, whether the deceased has prepared a will or not. While it will not apply to revenue, nor the administrative matters of public law.

 

Therefore, it is up to the national legislation of each Member State to determine, for example, the method of calculation and payment of taxes and other eventual levies by public law.

 

 

• Applicable Law: this Regulation provides as a general connecting factor for the purposes of determining the jurisdiction of the applicable law the habitual residence of the deceased at the time of death.

 

In order to determine the habitual residence, the authority that deals with the succession must conduct a comprehensive assessment of the circumstances of the deceased's life in the years preceding his death and eventual other relevant facts...

 

...in particular the duration and regularity of residence of the deceased in the State concerned and the conditions and the reasons of such residence.

 

However, in some cases it may be particularly difficult to determine the habitual residence of the deceased. For example, in the event that for professional reasons or economic the deceased had gone to live abroad for work, even for a long time, but he kept a tight connection and stable with the State of origin.

 

More complex cases may arise when the deceased had lived alternately in more States or had moved from one State to another without settling permanently in any of them.

 

Or, if the deceased had been transferred to the State of habitual residence at a time relatively close to its death, and in the case that all the circumstances indicate that he had manifestly more closely connected with another country.

 

In such complex cases, the authorities in charge of succession will have to decide whether it is to be applied to the succession law of the State of habitual residence of the deceased, or the law of the State in which the deceased had manifestly more closely connection.

 

Finally, the regulation allows citizens to organize their succession in advance by choosing the law of a State of which they are citizens. This choice must be made expressly by the will.

 

 

• inheritance agreements: Such agreements, under which a future heir or legatee has or renounces the rights that may accrue on a succession not yet been opened, it must be said that not all the legislations of the Member States recognize their validity.

 

At this regard, the regulation provides that, with regard to the admissibility and the effects of succession agreements, they are governed by the law which, under this Regulation, would have been applicable to the succession of the deceased person if he had died in the day of conclusion of the covenant.

 

While an inheritance agreement which deals the succession of several persons is admissible only if it is admissible pursuant to each of the laws which, under this Regulation, would regulate the succession of each of these people if they had died the day of conclusion of the covenant.

 

 

• European Inheritance Certificate: it is a certificate, the content of which is stated by this Regulation, issued by the courts identified by each national law of each Member State.

 

It can be used in another Member State in order that, a succession that took place in the EU is adjusted quickly, easily and effectively.

 

Therefore, the heir, legatee, executor or administrator of the inheritance can easily demonstrate its quality and / or its rights and powers in another Member State, where there are the assets of inheritance.

 

It is for each Member State to determine in their national legislation which authorities should be competent to issue the certificate.

 

For further information please visit our website: www.vemlegal.com

 

 

Photo credit: PhotoXpress.com

more...
No comment yet.
Scooped by vemlegal
Scoop.it!

Italy approves the Labour Reform by Minister Fornero

Italy approves the Labour Reform by Minister Fornero | Italian Legal Assistance | Scoop.it

Avv. Marco Mendola: the main novelties of the recent labour reform concern the art. 18 of the Workers' Statute, some aspects of the welfare system and some regarding the employment contracts.

 

 

1. Article 18

 

This is the point which was discussed the most and the most significant of the reform that has changed the rules for the reinstatement of the worker in his job. According to the wording of the old rule, that was applied only to companies with more than 15 employees, in the cases where the judge assessed an unfair dismissal he stated the automatic reinstatement, with equal pay and position.

 

Today the revised version provides that in the cases of dismissals for economic reasons, the court may order reinstatement only in cases of "manifest absence" of economic reasons, while in other cases it may only assign a compensation between 12 and 24 months of salary.

 

Even in the case of dismissal for disciplinary reasons, the reinstatement will no longer be automatic, but should be evaluated on the basis of collective agreements and disciplinary codes.

 

The old rule remain unchanged about discriminatory dismissals for political, due to union and religious reasons, for which the court may order the automatic reinstatement.

 

Finally, the reform introduce a summary procedure, for labor disputes involving dismissal, to shorten the time.

 

 

2. Unemployment benefits

 

From 2013, the mobility and the unemployment allowance will be gradually replaced by ASPI.

 

Such allowance will be paid for a period of 12 months, up to 18 for employees over 55 years, and corresponds at about 75% of the last salary.

 

This allowance will be funded by a contribution, paid by companies, equal to the 1,4% of the fixed-term contracts, which will make this type of contracts more expensive for businesses.

 

The employee who receive such benefit cannot refuse job offers involving a salary 20% higher than the monthly allowance, at the cost of losing it.

 

 

3. Apprenticeship

The apprenticeship is the main entry contract into the world of work.

 

New steps have been taken to prevent the abuse by the employer that relies only on apprenticeship contracts not renewed upon expiration.

 

Indeed, the recruitment of new apprentices, for employers who hire at least ten workers, shall be subject to the fact that in the three previous years, at least the 50% of apprentices were hired by the company after the training period even with temporary contracts.

 

 

4. VAT registration number contracts

The reform provides new measures to stop the abuse of these contracts. In fact, in some cases the working relationships with VAT registration number are considered automatically as coordinated and continuous collaboration. Anyway, the law states some exceptions.

 

These rules shall enter into force immediately for the new contracts and in 12 months for ongoing contracts.

 

 

5. Project contract

The project contracts must always indicate a specific project which can no longer be the same with the corporate purpose of the company and cannot consist in performance of repetitive tasks which are already subject to collective labor agreements.

 

 

6. Fixed-term contract

The reform introduces some mechanisms to combat the abuse of these contracts.

 

In fact, the reform fixes that the limit of 12 months within there is not the obligation to indicate the reason to use such contracts applies only to the first term relationship. However, collective agreements may provide some exemptions and exceptions.

 

Further, the reform provides that if the employment relationship has exceeded 36 months, regardless the periods of interruption between the eventual contracts, the contract shall be deemed as permanent.

 

To prevent the abuse of renewals of fixed-term contracts, rather than permanent contracts, it is established that to renew such contracts must spend 60 days, increased to 90 days for those that last more than six months (exceptions are made for seasonal jobs).

 

 

7. Intermittent work

Among the innovations introduced for this type of contract, widely used especially among commerce and tourism companies, it is introduced a communication made by the employer to the Ministry of Labor to notice the recruitment of worker with intermittent employment contract.

 

The communication must be done in advance to the beginning of the work activity and can be made via fax, email, or by text.

 

The notification must contain the data of the employer and of the employee, the term of the job activity, as well as the information about the pay and contribution of the employee. In case of failure to notify the employer may apply administrative sanctions.

 

These contracts regard employees under the age of 24 years or over 55 years. Employment contracts signed before the date of entry into force of the reform of labor will remain valid for one year.

 

The reform keep unchanged the cases in which it is forbidden the use of intermittent work, exhaustively listed in art. 34, paragraph III of Legislative Decree no. 276/2003.

 

Concerning the previous compensation of availability, which compensated the employee in the event that the employment contract obliges him to accept the call of the employer, now no longer applies the old conditions for which the benefit was due only in case of a real call of the employer.

 

Therefore, today the availability allowance must be paid regardless of the real call of the employer.

 

 

8. Blank resignations

The labor reform establishes new rules designed to discourage the practice of blank resignations.

 

In fact, in the case of resignation of the employee during pregnancy, or during the first three years of a child's life, or even in the first three years of acceptance of the adopted child, it is required a validation done to the Directorate of Territorial work responsible for the area.

 

 

9. Timing of application

Labour reform entered into force on the 18th July 2012, although for some mechanism, there is a staggered start.

 

In fact, the rules for professionals hired with VAT registration number contracts, who already have a contract with a company, have been postponed for one year.

 

Further, from 2013 will apply the new rules on the contract of apprenticeship in relation to the maximum of apprentices that a company can hire.

 

 

For further information visit our website: www.vemlegal.com 

 

Photo credit: PhotoXpress.com

more...
No comment yet.
Scooped by vemlegal
Scoop.it!

Begins the Fifth Energy Plan concerning incentives for renewable and photovoltaic

Begins the Fifth Energy Plan concerning incentives for renewable and photovoltaic | Italian Legal Assistance | Scoop.it

06/07/2012 - Decree on incentives for photovoltaic has been signed after months and months of proposals and discussions. Here are the major new features:

 

1) Start of the Fifth Energy Plan

 

The new energy plan will be applied after 45 days from reaching the spending limit of 6 million euros, which will happen about in late August 2012. With regard to the installations made on public buildings and public areas the new tariffs will start after the 31st December 2012.

 

2) New spending limit

 

The new installations will be incentivized until reaching the sum of 700 million, therefore reaching 6.7 million euros total the decree is disabled.

 

3) Incentive Fees

 

The new rates, much lower compared to those of the Fourth Energy Plan, will be comprehensive of incentives and energy sales, while in the previous Energy Plan the incentive calculated on energy produced, was compounded the sale of energy.

 

Another news regarding the incentive rates, which strongly penalizes the small installations to produce energy, is that the access to incentives is an alternative to the possibility of the energy metering.

 

4) Access to records

 

Further simplification of procedures pertaining to the mechanism of registers, reducing burdens and obligations on the part of investors.

 

The request for entry and the request for access to incentives can be made by submitting a substitute statement in place of an affidavit, accompanied by the necessary documentation.

 

Exempted from registration to register for the request for incentives:


- PV installations under 12 kW;


- PV installations between 12 and 20 kW who agree to receive an incentive fee deducted by 20%;


- PV installations made up 50 kW instead of eternity;


- PV installations integrated with innovative features;


- Concentration installations (always with a ceiling of 50 million);


- PV installations on buildings and grounds of public administration (if made public tender and again with a cost ceiling of 50 million €).

 

The acquisition of incentives is subject to the inclusion in the ranking by the GSE (it is not automatic that the construction of a photovoltaic system has access to incentives, and this leads to a strong insecurity in the field, especially for the big installments that require large funding.

 

5) Installations in place of Eternit roofs

 

In this case it will be possible, unlike the Fourth Energy Plan, combine two bonus provided for the replacement of Eternit roofs and the installation of panels made in EU.

 

6) Expansion of the application of incentives and concentrated photovoltaic

 

The Fifth Energy Plan has been extended to other types of buildings, including farm buildings, caves, mines and production buildings not subject to energy certification.

 

In addition, will benefit of incentive rates also concentrating photovoltaic plants with a rated power not lower than 1 kW and not exceeding 5 MW.

 

7) Charges GSE


Unlike to the Fourth Energy Plan are expected investigation costs and expenses payable to the GSE.

 

 

 

For further information visit our website: www.vemlegal.com 

 

Photo credit: PhotoXpress.com

more...
No comment yet.