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The transcript of the preliminary

The transcript of the preliminary

In this article I report the fundamental notions that the council of notaries wrote in its guide “The security in the real estate preliminary purchase contract”

The legal obligation arising from the signing of the preliminary is effective only between the parties.
This means that despite the signing of the preliminary the seller:

  • could sell the same property to other people or establish real rights of enjoyment (for example, a usufruct);
  • could enter mortgages on the property.

If this happens, the judge cannot be asked to invalidate the sale or the constitution of the real right of enjoyment or the granting of the mortgage, but you can only ask for compensation for damages.
Furthermore, the seller, regardless of his “incorrect” bargaining activity, could “suffer” actions on the property by third parties (foreclosures, seizures, court mortgages, summons).
There is however a remedy to avoid all these unpleasant consequences: the transcription of the preliminary, for which the notary’s intervention is necessary.

With the transcription of the preliminary agreement in the Real Estate Registers, other possible sales of the same property and in general all the acts done or “suffered” by the promising seller do not affect the rights of the promising buyer.
The transcription of the preliminary produces a reservation effect by retroacting the effects of the transcription of the definitive act at the time of the preliminary transcription. In other words, in relations with third parties, it is as if the final act had been transcribed at the time the preliminary was transcribed. In this way any detrimental transcriptions or registrations subsequent to the transcription of the preliminary are neutralized.

When to transcribe a preliminary

It will be all the more appropriate to transcribe the preliminary the greater the risk of incurring one of the
unpleasant consequences described above:

  • how much longer is the period of time that must pass between the date of stipulation of the preliminary contract and the date of stipulation of the final contract;
  • the greater the amount to be paid as a deposit or down payment;
  • the greater the risk of third-party actions in the event of insolvency of the seller (as in the case of a business seller and as such fallible).
How much does the preliminary transcript cost?

The transcription of the preliminary involves some costs more than the preliminary non-transcribed. Notwithstanding that the registration tax (as a variable percentage on the value of the goods) must always be paid regardless of the transcription, they must be paid in addition:

  • the fixed transcription tax (currently 168.00 euros);
  • the fixed transcription rights (currently 35.00 euros);
  • the notary’s fee (equivalent to the value of the assignment. Moreover, if the notary is the same to stipulate both the preliminary and the definitive contract, it will be possible to obtain a significant cost saving with respect to this last act, since the notary will have carried out most of the investigations required for this purpose at the preliminary meeting).

For any information about the process of buying a house in Italy, write to info@ortalloggi.com, I will be happy to answer your questions.

Alice  – www.ortalloggi.com

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