REGISTRATION OF SALES
1. Documents for sales. What type of documents does your LR system envisage for sales and carrying out their registration ?
As mentioned above, to register a sale it’s formally necessary: a) an authentic deed issued by a Public Notary; b) a notation in electronic format, including specific reference to the deed Part A; the cadastral description of the sold property Part B ; the names of the seller and the buyer Part C, specifying if applicable their matrimonial regime; if necessary additional relevant information can be included in a free space Part D.
2. Method of registration. Please, indicate which of these circumstances or data form part of the content of the registration annotated in the registration books or land books for sake of a sale or conveyance.
The registration includes some circumstances, like name and surname of the new owner and a reference to the deed. A copy of the deed is collected too.
REGISTRATION OF MORTGAGES
1. Please, indicate what main legislation governs mortgages in your system.
In Italy mortgages are governed by the Civil Code, articles from 2808 to 2899.
2. In your LR system, is the registration of a mortgage constitutive?
In the Italian LR system the registration of a mortgage is constitutive, what it is the most important exception for a system based on declarative registration.
3. Documents. What type of documents your LR system admits for establishing mortgages and carrying out their registration ?
Basically, mortgages must be granted in public document (Authentic Instrument issued by Notary) to be registered. Another possible source is a judicial decision.
4. Method of registration. Please, indicate which of these circumstances or data form part of the content of the registration annotated in the registration books or land books. (In case of not making any annotation but simply recording or collecting a copy of the deed, please indicate so.)
Legal content of registrations of mortgages must comply certain requirements in accordance with the civil code:
- First, a mortgage in the Italian LR system depends necessarily on the obligation ensured, which must be clearly identified (a loan, a credit line, a bank account, an endorsement, a bill of exchange and so on).
- The registration of a mortgage will include the main debt amount, agreed-upon interests and the maximum amount of the mortgage liability.
- The registration will also include the deadline of obligation guaranteed and, if present, the deadline of the mortgage.
5. Types of mortgages. If you believe it appropriate, indicate the kinds of mortgages which are relevant in your LR system.
The Italian legislation – art. 2808, last paragraph of the Civil Code, envisages three types of mortgages, depending on their source: voluntary, judicial and by law mortgages.
An additional kind of mortgage is the one that can be enrolled by tax collectors offices.
6. Modifications. What does your legal system envisage about modifying mortgages? Do debtors have any legal possibility of negotiating newly the terms of the contract or any part of them?
Modifications are carried out by new agreements or by judicial decision between creditors and debtors.
A very important innovation has been introduced by D.L. n.7/2007 (now included in D. Lgs. 385/93, art.120 quater) that provided the portability of the loan by debtor’s initiative and consequently the transfer of the mortgage (art.1202 of the Civil Code).
REGISTRATION OF JUDICIARY CHARGES
1. What kind of orders or judgments can create, modify or cancel an entry in your LR system ?
In Italian LR system certainly different types of judicial orders are presented for registration. The following are some common orders (but there are some more):
- Judicial orders of provisional measures to attach restrict disposition acts or freeze the assets of the debtor.
- Judicial decisions in foreclosure proceedings.
- Judicial decisions transferring the ownership or recognizing the property or other real rights on an immovable asset that can directly create, modify or cancel an entry in the land registry.
- Judicial decisions ordering rectification of an entry in the Land Registry.
- Judicial decisions about insolvency of owners or holders of property rights or rights in rem.
2. What’s the kind of registrations or entries caused in registration books or land books by these judiciary orders or decisions?
In the Italian system, judiciary orders or decisions may cause the following kind of registrations:
- Annotations indefinitely in force until a new decision;
- Common registrations whose content and duration depend on the decision of the court;
- Mere notices or remarks that have no rank or category of true encumbrance.
3. In particular, are creditors-plaintiffs who demand payments of sums or money entitled to rely on the Courts and apply for annotations (caveats) or judiciary mortgages in order to attach debtors’ assets?
In the Italian system the creditors are entitled to rely on the Courts and apply for a decree ordering to the debtor an immediate payment. This decree (Decreto ingiuntivo) is a title to apply for a judiciary mortgage.