Are you seeking to sell or purchase a property in Italy but are blocked when it comes to going to the Notary for the deed?
Every year, there is a massive increase of foreigners that want to purchase a house or land in Italy. And precisely for this reason they ask themselves whether it is necessary to travel all the way to Italy just to sign the contracts.
Keep in mind that in Italy you can use the special power of attorney to sell or buy properties in order to give another person the power to sign real estate contracts.
Through the special power of attorney, you can assign a specific power (selling or purchasing), so the delegate cannot perform any acts other than those indicated in the deed.
On the other hand, the general power of attorney is used for other acts concerning ordinary administration in which the power is not specified (for example paying small expenses, collecting mail). The general power of attorney is therefore not suitable when it comes to being able to sell or buy a property ( also known as a “real right”).
On one hand the use of a special power of attorney has many advantages but at the same time, it is still very risky. It always concerns an important economic operation (house or land sale in Italy) and is tied to the payment of very large amounts (even greater than 100,000 euros).
I am lawyer Gianluca Piemonte, specialized in real estate law, and I help my clients buy or sell houses or land in Italy; therefore I often work with clients who use the special power of attorney from abroad.
In this article I will talk to you about how to obtain a special power of attorney and its practical uses in the purchase and sale of real estate (either house or land).
Table of Contents
1 – Who can use a special power of attorney to sell or buy property in Italy?
The special power of attorney can be issued by anyone who has:
- The ability to act (> 18 years)
- Identified the specific object of the deal (sheet, parcel and property-sub to sell or buy)
- Determined the power to be conferred (sell, buy or, for other cases, renounce an inheritance in Italy, etc.)
- Identified the person to be delegated (name, surname and residence)
- Given the consensus of the other spouse to sign (but only in the case of a marriage under the communion of goods regime)
2 – When is a special power of attorney used in Italy?
The special power of attorney to sell or purchase in Italy is used when one of the contractual parties (either seller or buyer) cannot be physically present for the signature.
For example, a person living in England or the United States can delegate their brother, a lawyer or others to sign the contract for the sale of a house in Italy.
When it comes to inheritance and succession in Italy, the special power of attorney is used approximately by 95% of those living abroad.
The purpose of the special power of attorney is generally to:
- Avoid moving to another Italian region or state just to sign a contract
- Save on travel costs
- Avoid having to personally meet the other contractual party ( useful especially for example in situations where a quarrel has arisen between relatives, acquaintances or neighbors)
3 – How to obtain the power of attorney in Italy?
Whoever wants to be represented and wants to confer a special power of attorney must present himself with:
- Identification document (identity card, passport or driving license)
- Fiscal Code
- Generality of the representative, that is of the person to whom to confer the power of attorney
PLEASE NOTE: if you are married under the communion of goods regime, as mentioned, the power of attorney must also be signed by the spouse, who must present themselves with the same documents.
4 – How should the special power of attorney be done in order to sell or buy in Italy?
The power of attorney is valid only if it is realized in the same form as the contract to be concluded, as required by art. 1392 Italian civil code.
Therefore, the notarial power of attorney is necessary for contracts for the purchase or sale of houses or land, precisely because the same notarial form is also required for the purchase or sale of properties.
However, there is an exception to this rule, provided for any power of attorney issued from abroad (outside Italy), as explained in the next paragraph.
Whereas here you can find an example of special power of attorney to purchase.
5 – Power of attorney from abroad
For those who reside or live outside Italy there is a different method.
Based on international law, the power of attorney issued abroad is valid in Italy only if the form is equally valid under the law of the state in which it is drafted (Article 60 of Law 218/1995).
For example, the notarial power of attorney issued in Italy requires the presence of witnesses. Whereas in China the law provides that the notarial power of attorney can be issued even without witnesses. In this case, the power of attorney issued without witnesses in China is valid in Italy, because it complies with Chinese law.
However, over the last few years, the Italian Cassation Court has added additional steps and requirements (among these, signature in presence and identity verification), regardless of any other local law abroad.
Ultimately, the power of attorney to sell issued abroad is valid in Italy if:
- The authority issuing the power of attorney performs functions similar to the Italian notary (known as “public notary”)
- The form is valid under foreign local law (e.g. in France, Spain, Switzerland, UK, Sweden, Denmark, etc.)
- The signature is realized in physical presence
- The foreign authority has officially certified the identity of the subscriber
- It is translated into Italian by an official translator, from the Italian consulate or by the foreign or Italian notary who has receives it
- It is provided along with an apostille, if the country of the foreign notary is part of the 1961 Aja Convention
- Or it is backed up by legalization (for example Switzerland), in case the country of the foreign notary is not a party to the Aja Convention
Here is a short list of some countries that have joined the Hague Convention, where apostille is needed: Germany, Spain, United States of America, Malta, Argentina, Sweden, Australia, France, Switzerland, Austria, Greece, Hong Kong, Norway, Belarus, Hungary, Turkey, Belgium, Ireland, Netherlands, Ukraine, Poland, Portugal, Japan, United Kingdom, Bulgaria, Romania, Russia, Croatia.
For the other main countries, legalization is required instead.
How to obtain a special power of attorney from the Italian Consulate for those residing abroad
Italian citizens residing abroad are also able to obtain a special power of attorney directly from the notary office of the Italian Consulate.
This possibility, therefore, is reserved only for those in possession of an Italian citizenship and not for foreigners.
Generally, the special power of attorney issued by the Italian Consulate is used for:
- Buying or selling real estate
- Car sales
- Collecting money or payments
- Acceptance of inheritance
- Waiver of inheritance
- Acceptance of donation
- Donation (to donate)
6 – How long does the special power of attorney last?
The special power of attorney has to do with a single and precise business in Italy (selling or buying a house, building land, agricultural land, rural building, shop for commercial use, etc.). Therefore the power conferred through the power of attorney ceases as soon as the deal is concluded: that is, with the notarial deed.
However, there is always the possibility of the party granting the power of attorney inserting a term.
For example “This special power of attorney to sell will be effective until September 30th, 2025”.
Even though typically special powers of attorney are issued for an indefinite period, my personal advice to clients is to issue it for a term (6 or 12 months). There is no point in leaving an important power to others if the deal has vanished for one reason or another.
7 – How much does it cost?
The special power of attorney to sell or purchase properties has an average cost of 200 euros, because it can vary from 80 euros to 320 euros.
Among the deeds in presence of the notary, it is certainly the option that costs the least.
8 – Why should you NOT use a generic fac-simile of special power of attorney?
98% of those who want to sell or purchase with a special power of attorney usually use a fac-simile of a special power of attorney personally provided by the notary or discovered online.
This can lead to a huge mistake, with irreparable and irreversible consequences.
The special power of attorney must always be adapted to each and every specific case, tied to one’s own interest.
That is why a special power of attorney must contain and establish whether the delegate can:
- Negotiate on the price
- Cash out
- Issue a receipt
- Deliver private documents
- Sign the irrevocable purchase proposal
- Also sign the compromise (and negotiate on it)
- Insert the beneficiary party into possession
- Allow the potential buyer to access the property inspection visit
- Grant deferred payments
If this is not the case, the special power of attorney will be:
- Only apparently special (practically general)
- Not able to leave enough power to the prosecutor
- Not allow to carry out accessory yet fundamental faculties in order to sell or purchase safely
Whoever grants the power of attorney assigns all signatory powers to the delegate. However, this operation can be very risky, for several reasons:
- The special power of attorney is almost always granted for the sale or purchase of real estate (house or land) which is followed by the transcription in the real estate registers in Italy, which can not ever be modified again one completed
- The transaction subject to obtaining the power of attorney has a high price
- The notarial deed in Italy signed by the delegate by virtue of the power of attorney can no longer be modified once it has been done
The risk, therefore, is to end up having signed the exact thing you did not desire to sign. This can easily happen as you are not physically present at the time of signing of the notarial deed.
And since we are all aware that these are important, risky and expensive operations, it is always advisable to carry out the operation with the assistance of a professional Italian real estate lawyer.
I have already helped many buyers and sellers to carry out these operations in complete peace of mind and safety.
Here are 3 simple steps to follow in order to get my support:
- Tell us about your goal and your needs by writing a message on our CONTACT US page
- Receive a free quote in all transparency
- Accept my personalized assistance for your specific case. You will be constantly updated all throughout the entire process. My ultimate goal is to support you, and not replace you, to carry out all the trading operations with ease, clarity and safety.
I am looking forward to helping you, as I have already helped many Italians within the real estate industry.