This is the third in a series of questions regarding home buying in Italy. The questions are sent in by readers like you and are answered by our two experts, Italian real estate attorneys Claudia Bortolani (who is also licensed in California!) and Eleonora Cerin.
These Q&A sessions have been created in support of our Italian Home Buying tour in May 2024. On this tour we (Kitchen Table Travel) will be joined by Claudia and Eleonora, our real estate attorneys, and various agents as we view homes in the Sabina area of Italy. You'll get to know the area with us through activities like nature walks and cooking classes with locals and spend valuable time with experts so you can gain insight into their experience. All of this, the activities, lodging, meals, our attorneys are included in the price of the trip.
Let's get to this week's question, a complicated one that leaves us incredibly grateful for having attorneys that protect us and our investments! We would have never have guessed this could happen.
Q: The property I'm interested in was acquired by the current owner by donation, or as a gift. Are there any issues with it?
A: When a property passes hands from one person to another through a donation, legal issues may arise in a subsequent sale of the property, unless 20 years have passed from the transfer.
The main reasons are:
In Italy, a determined category of strict relatives (sons, daughters, wife, parents) have a right to receive by inheritance a certain “minimum quota” of the deceased relative’s assets (according to a ranking set forth in the law); in other words, it is not possible to deprive such legitimate heirs of the inheritance quota they are entitled to by law, not even through a will. We know that this is different from what happens in the US where you can leave your property to whomever you wish. In case of a donation, in the event that one of such “legitimate heirs” challenges it, claiming that it infringes upon their rightful share of the inheritance (known as "legittima"), and if the assets of the donee involved in the lawsuit are insufficient to satisfy the legitimate heir's claim (for instance, there are no other assets and the proceeds were spent), the current owner of the donated property may bear the consequences, if 20 years from the donation have not passed. This is true even if the current owner has no connection to the donor's family or the past donation involving the property in question. In such a scenario, the current owner may be required to return the property, with little or no compensation for this "dispossession. In conclusion, if the donees involved in the reduced donation have sold the donated properties to third parties, and less than twenty years have passed since the donation was registered, the legitimate heir, after exhausting the assets of the donee, may demand the return of the specific properties from subsequent buyers, free from any encumbrances (e.g., mortgages). Nevertheless, the third-party buyer can free themselves from the obligation to return the donated property by compensating the legitimate heir with an equivalent monetary sum.
If the legitimate heirs above have filed an “opposition to the donation”, an out-of-court warning to be served to the donee and registered in the Public Land Registries, the 20 year Statute of Limitations does not start to run. As such, the passing of the 20 year time would not be sufficient. We can ascertain that before closing.
A possible remedy, often consists in the purchasing of an insurance policy to cover you against such risks. For the future, as a general rule it will be more difficult to sell a property that was the subject of a donation, but then again, if you like it, it’s good to know that there remedies to the legal risks associated with it.
There you have it! It's worth it to pay a bit extra for that kind of advice and support!
If you have a question for Claudia and Elenora about the home buying process in Italy and you'd like to see it answered here, please email email@example.com.