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Italian Trulli

Do I need a notary or a lawyer when buying a property in Italy?

There is often confusion about whether you need a lawyer or just a notary (notaio) when buying a property in Italy. It can be tempting to cut corners and save a money on hiring an Italian lawyer (avvocato) when buying a property in Italy, as people often mistakenly believe that the notaio performs the same function as a lawyer.

The truth is you need both!

The property buying process in Italy

In Italy there are three stages to the property buying process:

  1. Proposa d’aquisto – this is the initial formal offer at which point you will be expected to sign a contract and pay a small deposit of up to five per cent, which is held by either the estate agent or your lawyer. Typically, this ensures that the property is removed from the market for up to four weeks, giving your lawyer time to carry out basic checks on the property. If the sale falls through for legal reasons this deposit is usually refundable.
  2. Contratto Preliminare de Vendita – Once the buyer and seller have agreed to go ahead with the transaction, the next stage is a binding, preliminary contract called the Contratto Preliminare di Vendita. This contract details the selling conditions including a description of the property, rights of way, ownership rights and stipulates the essential elements of the transaction. At this stage a deposit of 10-20 per cent of the property purchase price is usually payable by the buyer.
  3. Atto di Vendita (also known as Rogito) – Once the Contratto Preliminare di Vendita has been signed the notaio is appointed to draft the deed of sale known as the Atto di Vendita. This is a conveyance document that transfers the legal ownership of the Italian property, which is signed by both the buyer and vendor in their presence at the notaio’s office, completing the final stage of the buying process in Italy.

A reputable Italian property lawyer will assist if the buyer has any concerns and there are issues that need to be resolved before entering into a legally binding contract and parting with any money! Instructing a good independent Italian lawyer will help you avoid any potentially costly mistakes. 

What does an Italian lawyer do that a notaio doesn’t?

notaio is a public official who must remain completely impartial, as typically in Italy vendors and buyers use a single notaio for the property purchase transaction and therefore must not favour either side. Their main role in terms of Italian property purchases is to help facilitate the transfer of ownership between the buyer and seller. They oversee the property purchase, collect the taxes due and register the property with the Italian land registry (Catasto). However, crucially they cannot offer advice, unlike an independent Italian lawyer who represents the interest of the purchaser so it’s advisable to instruct and English-speaking independent Italian lawyer at the beginning of the buying process to ensure the following:

 

That you are protected as a buyer

By providing you with specialist advice, an independent English-speaking Italian lawyer will help you to make an informed decision about the property purchase in Italy. They are also in a position to negotiate the best contractual terms and conditions in the best interests of the buyer and advise you regarding any issues that (will inevitably) arise and negotiate a solution to this on your behalf.

 

All searches are carried out in good time 

While an Italian notaio will carry out searches with regards to land registry, ownership and the presence of mortgages, for example, they cannot offer any legal advice if any issues arise.

In addition, typically the notaio does not get involved with the property purchase until the third stage of the property buying process in Italy, by which point you will have already signed a legally binding contract and parted with a substantial amount of money. Your Italian lawyer will ensure that all the searches are carried out in plenty of time, meaning there won’t be any nasty surprises along the way, long before you sign any contracts and, crucially, before you hand over any funds!

 

Arrange a Power of Attorney (if needed)

If necessary your Italian lawyer can arrange a Power of Attorney so that all essential documentation can be signed on your behalf if you are unable to be present in Italy when the paperwork needs to be signed. This could save you additional money on potential unplanned trips to Italy.

You might find that an Italian lawyer can also assist with the transfer of utilities for a property purchase and obtaining a fiscal number (Codice Fiscale), a tax code similar to a National Insurance Number in the UK, which you will need in order to be able to buy property in Italy. If you’re not fluent in Italian it can prove challenging to organise such things, so an Italian lawyer may be able to help with this.

What do you need in an Italian lawyer?

If you’re buying a property in Italy it’s crucial that you instruct an independent Italian lawyer early in the buying process to ensure that your interests are protected. When choosing an Italian lawyer, you should consider the following:

 

Is your lawyer independent? 

By ‘independent’ we mean that your lawyer should not be linked in any way to the seller, developer or estate agent, to ensure that there is no conflict of interest.

Your Italian lawyer should be independent from the estate agent so that you can be sure that they are acting solely in your best interests. If the lawyer is connected to or regularly works with the estate agent they may have an interest in ensuring that you buy the property so the estate agent receives their sales commission. An independent lawyer however will only be concerned about ensuring you know everything you may need to know and any issues are resolved before you proceed with your property purchase in Italy.

 

Your lawyer should be able to speak both Italian and your own language.

Things can easily get lost in translation, so it’s crucial that your lawyer can communicate easily in your own language to explain everything clearly, as well as being fluent in Italian.

 

Is your lawyer clear about the costs involved?

A good lawyer should outline all the associated costs with buying a property in Italy (including lawyers’ fees, land registry, notary fees and purchase taxes) so that it’s clear from the beginning what the full cost will be and there are no nasty surprise bills at the end!

 

For more information about buying a property in Italy or for assistance from one of our recommended Italian lawyers give us a call on 01244 470 339 or email info@worldwidelawyers.co.uk

You can also download our FREE Buying Property in Italy guide.

Spanish village

Buying a property in Spain – Do I need a lawyer?

We’re often asked whether you need a Spanish lawyer when buying a property in Spain or whether you can just use a notary – notario – to complete a property purchase in Spain. The answer is you need both!

What does a Spanish lawyer do that the notario doesn’t?

The role of the notario in Spain is essential to complete a property purchase – they ensure that all the relevant documentation is prepared according to the law; documentation is completed accurately; that the relevant parties have the authority to sign the paperwork and collect the taxes due. The completion documents must be signed by the parties in the presence of the notario, However, the notario is impartial and, therefore, does not act on behalf of the purchaser or provide individual advice.

An independent Spanish lawyer, on the other hand, represents the interest of the purchaser and will do the following to ensure that your property purchase in Spain is as safe and stress-free as possible:

 

  1. Obtain a copy of the Nota Simple – a short legal report of the property containing details of the current owner(s); the type of ownership; brief description including the size and boundaries of the property; any charges/debts attached to the property; classification of the property and more. You can obtain a Nota Simple translated into English here. This is to ensure that all the relevant licences are in place, that there are no charges or debts attached to the property (which could be passed on to the buyer) as well as verifying that the seller is indeed the registered owner of the property.
  1. Carry out all necessary searches for the property, such as checking whether there has ever been a planning breach, verifying that there is a License of First Occupation, ascertaining the taxable value of the property and more. Find out in more detail about why it’s important to verify such details here.
  1. Protect your position as a buyer by providing you with specialist advice to enable you to make an informed decision about the property purchase and make the necessary negotiations regarding any issues that arise.
  1. Act as Power of Attorney, if necessary, so that all essential documentation can be signed on your behalf if you are unable to be present in Spain when the paperwork needs signing.
  1. Help you obtain an NIE number, a Spanish identification that is required by non-Spanish residents buying a property in Spain. If your solicitor is appointed as Power of Attorney they are able to obtain your NIE number on your behalf.
  1. Draft all the documentation that is necessary to complete a property purchase in Spain, including preliminary contracts, draft deed of sale and deeds of sale.
  1. Organise an appointment between yourselves (or your Power of Attorney), the vendors and local notario to complete the property purchase in Spain before the notario, during which the purchase deeds will be signed, registered at the land registry and the fees paid on your behalf.
  1. Arrange for the transfer of utilities, such as electricity and water, into your name.

If you’re buying a property in Spain it’s crucial that you instruct an independent Spanish lawyer early in the buying process to ensure that your interests are protected. You’re chosen lawyer should:

 

  • Be independent –This means your lawyer is not linked in any way to the vendor or estate agent. This is to ensure that there is no conflict of interest and that your lawyer is acting solely in your best interests rather than potentially ensuring the sale proceeds regardless of legal complexities that may be encountered.
  • Be familiar with the local conveyancing system – Spain has 17 autonomous regions, therefore conveyancing laws can vary from one region to the next, so it’s important that your Spanish lawyer has experience in the local conveyancing system.
  • Speak both Spanish and your own language – Things can easily get lost in translation, so it’s crucial that your lawyer is fluent in Spanish, to manage the legal documents in Spain, and communicate easily in your own language to explain everything clearly.
  • Offer guidance before any paperwork is signed – A good lawyer will advise you what should be verified before signing a reservation/purchase contract or paying a deposit.
  • Be clear about the cost  A reputable lawyer should outline all the associated costs with buying a property purchase – including lawyers’ fees, land registry, notary fees and purchase taxes – so that you are aware from the beginning of the full costs.

For more information about buying a property in Spain or for assistance from one of our recommended Spanish lawyers give us a call on 01244 470 339 or email info@worldwidelawyers.co.uk. You can also download our FREE Buying Property in Spain guide here.

Gibraltar flag

Resealing a UK Grant of Probate in Gibraltar

When dealing with the estate of someone who owned assets in Gibraltar, to administer the Gibraltar estate you must either obtain a Grant of Probate in Gibraltar or make an application for the grant to be ‘resealed’, to allow the assets to be transferred to the beneficiaries or sold.

As Gibraltar is a British overseas territory, thanks to the Colonial Probates Act, it can be easier and cheaper to obtain a ‘reseal’ of the UK Grant of Probate, or indeed a Grant of Probate issued in another Commonwealth country, as opposed to obtaining a separate Grant of Probate in Gibraltar. But what does this mean?

A Grant of Probate is a legal document that may be required to administer the estate of someone who has died. ‘Resealing’ a Grant of Probate essentially means that the courts in Gibraltar will recognise the Grant of Probate (or equivalent document issued in another country), therefore reducing the duplication of administration and the amount of the associated legal costs.

 

If you’re a solicitor, executor or administrator dealing with an estate of someone who owned assets in Gibraltar, whether it’s land/property in Gibraltar, cash in a Gibraltar bank account or shares in a Gibraltar company, Worldwide Lawyers can assist.

Contact our team for a FREE no–obligation discussion about how to deal with assets in Gibraltar. Contact us on 01244 470 339 or at info@worldwidelawyers.co.uk

 

FAQs about ‘resealing’ a Grant of Probate in Gibraltar  

Do I need a lawyer in Gibraltar to re-seal a Grant of Probate?

It’s unlikely that your local solicitor will able to assist with a ‘reseal’ of Grant of Probate in Gibraltar, unless they have experience of the process to ‘reseal’ the Grant of Probate in Gibraltar. The process requires an understanding of the local law and compliance with procedures specific to Gibraltar. Therefore, most people will need to instruct a lawyer in Gibraltar who has experience of this process to reseal the Grant of Probate.

A suitably qualified and experienced solicitor in Gibraltar will also be able to arrange for the assets in Gibraltar to be sold or transferred to the beneficiaries.

 

Worldwide Lawyers can put you in touch with a lawyer in Gibraltar who can assist with ‘resealing’ a Grant of Probate in Gibraltar. Call our team on 01244 470 339 or email info@worldwidelawyers.co.uk

Will a Grant of Letters of Administration be recognised in Gibraltar and can it be re-sealed?

If the deceased person did not have a will when they died, the person authorised to deal with the estate – usually the next of kin – will obtain a document called a Grant of Letters of Administration instead of a Grant of Probate. If there is a will that person will be known as an executor, if there is not a will they will be known as the administrator.

Both a Grant of Probate and a Grant of Letters of Administration can be resealed in Gibraltar.

Do you always need to obtain a resealed Grant of Probate to deal with assets in Gibraltar?

Whether you need to obtain a reseal of a Grant of Probate depends on the value of the assets and what the estate comprises. It will depend on the requirements of the institution such as the bank or investment company holding the funds in Gibraltar as to whether a Grant or resealed Grant will be required. Even if the estate is of low value, if it contains stocks and shares and/or property a ‘resealed’ Grant of Probate will usually be required.  

 

If you are an executor, administrator or lawyer dealing with an estate where there are assets located in Gibraltar contact Worldwide Lawyers on 01244 470 339 or at info@worldwidelawyers.co.uk. We can provide you with some FREE initial guidance and also put you in touch with an experienced lawyer in Gibraltar who can assist in obtaining the ‘resealed’ Grant of Probate in Gibraltar. 

Our recommended lawyers are also able to help you arrange for the assets located in Gibraltar to be sold or transferred to the beneficiaries of the estate as required.

 

International surrogacy

What do you need to know about international surrogacy? 

Surrogacy is an emotive and complex matter, and international surrogacy can present additional unique legal, ethical and risk-management challenges. However, restrictions to commercial surrogacy arrangements in England and Wales combined with lower medical expenses and a greater availability of women abroad who are willing to act as surrogates compared to the UK, means that using a surrogate overseas is appealing for those who want to make their dream of being a family come true.

If you’re considering international surrogacy, just as you would with the domestic surrogacy process, you should do your research before making the decision to commit to using a surrogate in a different country. The UK government’s Surrogacy Overseas guide and it’s recent guidelines on surrogacy in England and Wales are a good starting point. In addition, seeking legal advice is crucial, as it’s essential that you completely understand the risks involved in foreign surrogacy arrangements, the process, legal implications and what to expect before signing a contract for an international surrogacy arrangement.

Choosing to use an international surrogate should be a decision made with the head not the heart. Preparation and early legal advice is key to make the process as easy as possible and to avoid unnecessary distress.

 

The legalities of an international surrogacy arrangement 

There a host of legal questions to get your head around when considering international surrogacy. Are surrogacy arrangements enforceable? Am I the legal parent? How do I become the legal parent? Which country’s law applies? Is my child a British citizen?

Using a foreign surrogate compared to using a British surrogate can actually put you in a stronger position in terms of your legal rights.  While surrogacy arrangements are unenforceable in England and Wales – even if the child is genetically connected one of the intended parents – in an increasing number of countries, such as Georgia and Ukraine, a surrogacy contract is legally enforceable. In recent years many countries – including Thailand and India – have clamped down on commercial surrogacy, though, following a series of high-profile cases. So, it’s vital when considering international surrogacy to ensure that the laws of the land permit it.

However, the question of parenthood is much more complex. Although in countries where surrogacy arrangements are legal, a birth certificate will often name you as the legal parents in that country, under English law you will still not be considered the legal parent until a Parental Order or an Adoption Order is granted in your favour. Even if the surrogate mother has no genetic connection to the child, she is considered to be the legal mother according to English law. Furthermore, if the surrogate is married, her husband (or civil partner) is deemed the legal father of the child under English law, unless he/she didn’t agree to the surrogacy arrangement. If the surrogate mother is unmarried, the intended father can be treated as the legal father, as long as he is the genetic father or if he is legally named as the father when the child is born.

In addition, making commercial payments – which is deemed as remunerating the surrogate with an amount over and above reasonably incurred expenses – is prohibited in England and Wales, but an international surrogacy contract almost always requires payments to the surrogate and sometimes third parties. Therefore, to obtain a Parental Order you will have to provide details regarding the international surrogacy agreement in order for the High Court to retrospectively authorise the payments if they consider it appropriate, under the HFEA 2008 ­act, which governs Parental Orders.

Although there has not yet been a reported case of the courts failing to grant authorisation of these payments, there is an increasing concern from judges about the extent to which women in some countries risk exploitation. Therefore, you should expect the court to scrutinise the details very carefully in terms of what payments have been made, and how those payments compare to the local cost of living etc.

Until you are granted a Parental Order, you are not the considered to be the legal parents under English law. This means you will not have parental responsibility, which gives you the authority to make all the crucial decisions about a child’s upbringing, until a Parental Order is granted. Therefore, you could encounter legal problems, should crucial decisions need to be made, such as authorising medical treatment, before obtaining a Parental Order.

However, once granted the Parental Order goes one step further than adoption as the General Register Office will, on receipt of the court order, issue a new birth certificate for your child naming you as the parents!

 

Obtaining British citizenship for your child

In some international surrogacy cases, it is possible for the child to be born British, in which case it is possible to apply for a British passport at the nearest British embassy. It should be noted that the application can be complex and requires extensive documentation, which will need to be sent back to the UK. Understandably, these applications often attract close scrutiny and, as such, this can be a lengthy process, potentially taking several months.

However, in most cases a child born to a foreign surrogate is not automatically considered a UK citizen. Therefore, they will usually a need visa to enter the UK, and problems with obtaining immigration clearance – especially before parenthood is transferred – are not uncommon. There are a few options available, depending on the country in which the international surrogacy arrangement is held.

  1. An application to register the child as British can be made from abroad, but this can be a lengthy process and will require substantial documentation, as well as lengthy detail and evidence of the surrogacy arrangement.
  1. Alternatively, if the application to register the child is to be made from within the UK, careful consideration of how to bring the child to the UK in the interim will need to be undertaken.

Once the child has been successfully registered, they will be issued with a Certificate of Registration, which can be used to apply for a British passport for the child.

For parents who are not British but resident within the UK, the legal position is much more complicated, and therefore seeking legal advice at the earliest opportunity is strongly advised.

 

Unexpected complications regarding international surrogacy

The complexity and lengthy process of obtaining British citizenship and/or securing immigration clearance, combined with local immigration rules – which may limit the amount of time the intended parents can remain in the country of the child’s birth – may result in additional complications.

It can also become a race against time to procure the right to bring the child back to the UK before the intended parents’ visas expire. In the worst-case scenario, the intended parents may have to leave the country and child, and therefore arrange suitable care for the child until they can return. In addition, this can also have an impact upon the intended parents’ ability to apply for a transfer of legal parenthood. The criteria for a Parental Order states that the child lives with the applicants on both the date of the application and the date of the final order.

It is vital for anyone considering an international surrogacy agreement to consider the laws both in their home country and in the country in which the arrangement will take place. Seeking expert advice from family lawyers and immigration specialists before proceeding with a foreign surrogacy arrangement is crucial, to ensure that both country’s laws are compatible and will allow the for the prompt and straightforward transfer of legal parenthood.

For more information and details of a recommended lawyer, with experience in dealing with the legal aspects of surrogacy, contact our team on 01244 470339 or email us at info@worldwidelawyers.co.uk

 

 

Food poisoning on holdiday

Can I claim for food poisoning abroad?

Following a 500 per cent rise in holiday sickness claims, according to The Association of British Travel Agents (ABTA), there has been a clamp down on fake holiday sickness claims. Under new rules, similar controls relating to personal injury cases, will apply to for holidaymakers seeking compensation.  The legal costs that can be claimed in package holiday illness cases will now be fixed, whereas previously mounting legal costs meant many package holiday providers settled out of court.

A package holiday sickness claim, will only be successful if it is proven that someone has suffered due to negligence, and it can be difficult to prove this. After all, who’s to say it’s not the bar across the road from the hotel that’s served up a dose of food poisoning to its neighbour’s guests?

The chances are, before even considering seeking compensation most people will already be on a flight home. However, if you do have a genuine case of food poisoning on holiday there are a few things to consider, which will help you make your case.

 

Speak to other holidaymakers

Talk to other guests in the same hotel and find out whether anyone else has suffered from the same or a similar illness. If there are multiple cases within the hotel, the likelihood is that the hotel is responsible, as opposed to another establishment. Make sure you get their names and contact details, so they can corroborate information after you leave the holiday resort.

 

Report the illness

If you find yourself unwell and think it has been caused by food poisoning at your hotel, you should inform your package holiday provider and a hotel representative at the earliest opportunity. Check that your complaint is recorded and ask for an official written copy.

 

Seek medical attention

Don’t suffer alone in the hotel room! Seek medical attention immediately and make sure you obtain a copy of the doctor’s record. You should also keep all receipts for any medication purchased and any other costs incurred due to your illness, such as taxi fares to the doctors/hospital etc.

 

The new regulations regarding holiday sickness claims should not put you off claiming if you have a genuine case. It’s understandable that if your holiday has been ruined due to food poisoning, you should expect some sort of compensation. There are, undoubtedly, many genuine cases in which people have contracted illnesses as a direct result of poor health and hygiene practices in some holiday resorts, and these new rules do not mean that such individuals do not have the right to claim. The new regulations are simply to deter false claimants, which have been exacerbated by some claims management companies.

 

If you’ve been affected by food poisoning on holiday and require a lawyer to assist you with your holiday sickness claim, contact Worldwide Lawyers on 01244 470 339 or email info@worldwidelawyers.co.uk to find out how we can assist.