In Whose Name Do You Buy? Spouses, Co-Owners and the Deed in Italy

Picture the morning of the deed: a table, a pen, and a page on which the names have been typed. This article is about what those names settle.

Whose name goes on the deed?

A deed can name one buyer, several buyers who are not married to each other, or spouses, and the consequences differ. The deed is received by the notaio, the Italian notary, and it names the buyers. Where there are several, the title may set their shares, and the Civil Code presumes them equal when the title does not.^[1] It does not require them to be equal.

One buyer, whether unmarried or married under separation of property, acquires the property alone.^[3] Several buyers are co-owners. Spouses under the statutory community of property are different: what either spouse acquires during the marriage falls into the community, with the exceptions the Code lists.^[4] The name on the deed does not alone decide it. And for a couple with a foreign element, the rules described further on, and not the Italian default alone, decide which country’s regime applies.^[2]

What does it mean to own a home with others?

When ownership belongs to several persons, the rules of articles 1100 to 1116 of the Civil Code apply unless the title or the law provides otherwise.^[5] Four points from those articles matter to a buyer who is to be one of several.

Use, share, costs and consent

Each co-owner may use the common property provided that its purpose is not changed and the others are not prevented from using it in the same way.^[6] Each may also dispose of his or her right and let others enjoy the property within the limits of the share.^[7] That covers the co-owner’s own share, not the whole property.

On costs and administration, each co-owner must contribute to the expenses necessary for conservation and enjoyment of the common property, and to those decided by the majority.^[8] The person who takes over a co-owner’s share is jointly liable with the transferor for contributions due and unpaid.^[8] All co-owners have the right to take part in administration, and decisions on ordinary administration are taken by a majority calculated by value of shares.^[9] Some acts need everyone: consent of all the co-owners is necessary for acts of alienation or for the creation of real rights on the common property, and for leases of more than nine years.^[10]

Leaving the co-ownership

Each co-owner may always ask for the co-ownership to be dissolved.^[11] The court may allow a delay of up to five years if immediate dissolution would harm the others.^[11] An agreement to remain in co-ownership is valid for up to ten years and also binds those who take over from the co-owners.^[11] Things that would stop serving their purpose if divided are not subject to division,^[12] and the rules on dividing an inheritance apply to the division of common property where they do not conflict.^[13]

Pre-emption between co-owners

The articles on co-ownership do not give a co-owner a pre-emption right over a share that another co-owner sells.^[5] The Civil Code gives such a right to co-heirs of an inheritance who wish to sell their share to an outsider: see “Pre-emption Rights: Who May Have the First Right to Buy”.^[14] The two situations are different, and the right is stated for the second one only.

What happens when spouses buy?

Between spouses, in the absence of a different marriage agreement, the legal regime is the community of property.^[15] The Code sets out what falls into it and what does not.

What falls into the community

Acquisitions made by the two spouses together or separately during the marriage fall into the community, except those relating to personal assets.^[16] So do the fruits of each spouse’s own assets, received and not consumed when the community ends; the proceeds of each spouse’s separate activity, if not consumed when the community ends; and businesses run by both spouses and set up after the marriage.^[16] On that wording, a home acquired by one spouse alone during the marriage falls into the community unless it counts as a personal asset.

What stays personal

Assets that the spouse owned before the marriage stay personal.^[17] So do assets acquired after the marriage by gift or succession, unless the deed of gift or the will states that they go into the community; assets for strictly personal use; assets that serve the spouse’s profession; compensation for damage and disability pensions; and assets acquired with the price of the transfer of the personal assets listed, or in exchange for them, provided that this is expressly declared at the time of purchase.^[17][18]

The declaration in the deed

Real property has a rule of its own. The purchase of real property made after the marriage is excluded from the community on the grounds of strictly personal use, of the spouse’s profession, or of acquisition with the price of personal assets or in exchange for them, when the exclusion appears from the deed of purchase, if the other spouse was also a party to it.^[19] So the exclusion turns on the ground itself, on what the deed says and on the other spouse’s participation.

Administration and later acts

Each spouse may administer the assets of the community separately. Acts beyond ordinary administration are done jointly by both spouses.^[20] An act on real property done by one spouse without the necessary consent of the other, and not ratified, is voidable.^[21] The other spouse may bring the action within one year from knowing of the act and in any case within one year from its transcription, and the article sets other time limits where the act was not transcribed.^[21]

What if the spouses choose separation of property?

Spouses may agree that each keeps sole ownership of what he or she acquires during the marriage.^[3] A marriage agreement must be made by public deed on pain of nullity.^[22] The choice of separation may also be declared in the act of celebration of the marriage.^[22]

Marriage agreements cannot be set up against third parties unless the date of the contract, the notary and the parties’ details, or the choice of separation, are annotated in the margin of the marriage act.^[23] Each spouse enjoys and administers the assets of which he or she is the sole owner.^[24]

Which regime applies to a foreign couple?

For a couple with a foreign element, two sets of rules say which country’s law governs the property regime between them: an EU regulation and an Italian statute.^[2] The rules do not describe what any foreign regime provides.

The EU Regulation

Regulation (EU) 2016/1103 applies to matrimonial property regimes in the Member States taking part in the enhanced cooperation under which it was adopted.^[25][26] Italy was among the States that asked the Commission to establish it.^[27] Its rules on applicable law apply only to spouses who marry, or who specify the applicable law, after 29 January 2019,^[28] and the Regulation applies from 29 January 2019.^[26]

Spouses or future spouses may agree on the law applicable to their regime, provided that it is the law of the State where either of them is habitually resident when the agreement is made, or the law of a State of which either is a national at that time.^[29] The agreement must be in writing, dated and signed by both spouses.^[30] Where there is no choice, the applicable law is that of the State of the spouses’ first common habitual residence after the marriage; failing that, of their common nationality at the time of the marriage; failing that, of the State with which they jointly have the closest connection at that time.^[31] There is a limited exception by court decision on application.^[32]

The law designated applies whether or not it is the law of a Member State,^[33] and it applies to all the assets whatever their location.^[34] It governs, among other things, the classification of the spouses’ property into categories, the powers of each spouse over property and the effects of the regime on relations with third parties.^[35] A spouse may not invoke the applicable law against a third party unless the third party knew, or should have known, of it.^[36] For immovable property, the third party is deemed to know the law if it is the law of the State where the property is situated, or if the spouse complied with the disclosure or registration requirements of that State.^[36]

The Regulation has limits. It does not apply to the nature of rights in rem relating to a property, nor to the recording of rights in a register or its effects,^[37] nor to succession to the estate of a deceased spouse.^[38]

The Italian statute

The Italian statute on private international law provides that property relations between spouses are governed by the law applicable to their personal relations, and that the spouses may agree in writing that they are governed by the law of the State of which at least one of them is a national, or in which at least one of them resides.^[39] The personal relations of spouses are governed by their common national law or, if they have different nationalities, by the law of the State in which married life is mainly located.^[40]

A regime governed by foreign law can be set up against third parties only if they knew of it or were unaware of it through their own fault.^[41] For rights in rem over immovable property, this is limited to the cases in which the forms of publicity required by the law of the State where the property is situated have been complied with.^[41]

This article does not decide which provision applies to an individual couple. The answer also depends on the foreign regime that the rules designate, which is not described here. Family law and the law applicable to a couple depend on the facts of each case, and the rules change over time.

What does the deed record?

The note presented to the property registers to transcribe the deed must state the surname, name, place and date of birth and tax code of the parties and, for married parties, their matrimonial regime, as it results from their declaration made in the title or from a certificate of the civil registrar.^[42] The regime of a married party is thus declared in the title or shown by a certificate. An exclusion on those grounds also has to appear from the deed of purchase.^[19]

The deed also contains other statements that apply to every purchase whoever the buyers are, such as the declarations on payment: see “The Bank Account and the Source of Funds” and “How a Foreigner Buys Property in Italy”. The preliminary contract, which comes before the deed and in which the buyers are already named, is described in “Offer, Preliminary Contract, Deed: Who Is Bound, and When”. A purchase financed by a loan is a separate contract: see “Can an American Get a Mortgage in Italy? The Steps and the Rules”.

What happens later: a sale, a division, a death?

The form chosen at purchase appears again at three moments.

On a sale, co-owners need the consent of all for an act of alienation of the common property,^[10] while each may dispose of his or her own share.^[7] For spouses under the community, acts beyond ordinary administration are done jointly,^[20] and an act on real property without the other spouse’s necessary consent is voidable.^[21] A spouse who is the sole owner under separation of property administers and enjoys the asset.^[24]

On a division, a co-owner can always ask for the co-ownership to be dissolved, subject to the limits on delay, on agreements to remain in co-ownership and on things that cannot be divided.^[11][12] On a death, what happens to a share, or to a spouse’s part of the community, is a question of succession law, which this article does not cover. The Regulation on matrimonial property regimes does not cover succession either.^[38] See “Who Inherits the House”.

What should you ask the notaio or a lawyer?

The answers depend on the buyers and on the foreign law concerned, and none can be given in general. Questions that are usually put:

– Which regime applies to us, and on what rule: the Regulation or the Italian statute?

– Have we made a choice of law in writing, or a marriage agreement, and is it available in a form the notaio can use?

– How will the deed record each buyer’s name, civil status and regime?

– If the purchase is to be excluded from the community, what must the deed say, and must the other spouse take part?

– If we buy as co-owners, in what shares, and how would a share be sold or divided?

– Who must sign a later sale, and what happens if one co-owner or spouse is abroad?

Enquire

Thinking about a home in Tuscany and how the purchase is recorded? Talk it through in confidence. Enquire →