Classic background checks

The main checks on legality that the notary must perform may be summarised as follows:

1. Verify the identity of the parties involved and their legal capacity to undertake the transaction by way of verification of the matrimonial property status between spouses (joint or separate ownership), the legal competency in the case of foreigners, minors, interdicted or incapacitated persons or the beneficiaries of government support, and so on. The notary’s check on the identity of the parties is to avoid the risk of identity theft which is widespread in common law legal systems, where it is possible to access and change the entries in land registries (if any) without any advance check on legality. The phenomenon is so serious in the United States that the FBI has requested the collaboration of the Italian notariat in preventing fraud of this type, showing the interest of the Anglo-Saxon world in the civil law system and its guarantees.
2. Make legal searches to ensure that there are no previous mortgages, or liens or distraints of the Taxation Office and that the property’s urban planning and land registry status is in order. The notary must also verify that the property to be sold is not subject to specific covenants e.g. in the field of public housing (existence of subjective requirements regarding the purchaser, or price constraints) or right of first refusal in favour of certain parties or restrictions in the case of assets of historical, artistic or archaeological interest.
3. Identify the taxation regime applicable to the case and determine whether the requirements are met for any tax benefits (such as subsidies for the purchase of a first home, or a tax credit or exemption from tax in the case of transfers following separation or divorce agreements).

Through specific training in the field of taxation, the notary is able to suggest solutions for perfectly legal tax savings.

At the time of registration of the conveyance, the notary must pay the Taxation Office the taxes owed by the purchaser this means receiving the sums directly from the buyer and paying them to the State. Each year, the notary collects on behalf of the State taxes linked to all transactions, paying in billions of euros annually in indirect taxes and capital gains without any commission paid by the State, and this even if the sums are not collected from the client.