How to buy a property in Italy: the special power of attorney

Introduction

It often happens that those who want to buy a property cannot be present at the final act of sale. The reasons can be many.

A classic example is that of foreign citizens who intend to buy a house in our Bel Paese.

How to do then when we want to buy a property but we can not be present personally at the notary deed of sale? The most widely used method is a special power of attorney.

What is the power of attorney

To understand what the power of attorney is, we need to take a step back and frame what representation is.

Representation is the Italian legal institution through which someone (represented) expresses his or her willingness to negotiate through another person (representative) who acts in name and on behalf of represented.

With the power of attorney in fact, the representative can make legal acts spending the name of the represented and ensuring that the legal effects of the concluded transaction are directly produced in the legal sphere of the person whose name he has spent.

Our civil code, art. 1388, in fact, provides that “the contract concluded by the representative in the name and in the interest of the represented person, within the limits of the powers conferred on him, produces direct effects towards the represented person”.

Let’s take an example: Tizio, an American citizen, intends to buy a property in Italy, but for some reasons he cannot go personally to the final deed of sale; Tizio has the right to go to the Notary and confer on his attorney Caio special power of attorney to buy.

On the day of the final deed of sale, Caio goes to the Notary and signs the deed of sale on behalf of Tizio.

What happens then? Since Caio has acted in force of special power of attorney to purchase issued by Tizio, all the legal effects of the deed of sale will be produced directly in the legal sphere of Tizio, who will become the owner of the property.

If we think of all those cases in which a subject for various reasons is unable to go to the Notary to undersign the deed of sale, we understand how this institution can represent a valuable help.

Expecially for foreign citizens who doesn’t wont or can not be present at the deed of sale.

Difference between power of attorney and representation

We must keep in mind the diversity between power of attorney and representation, because although it may seem trivial, sometimes these concepts are confused, and therefore it is important to distinguish:

Representation: institution of private law, regulated within our civil code by art. 1387 and following, by means of which the representative acts as a substitute for the represented, in making a legal act.

Power of attorney: a unilateral legal transaction whereby the represented gives the representative (or prosecutor) the power to represent him.

The different types of power of attorney

The most important difference that we have within our legal system regarding voluntary power of attorney is the definition of the powers that the represented by the representative in relation to the acts that he can perform.

There are two types of power of attorney:

Special power of attorney: is a unilateral act by which the representative gives the representative the power to act in his name and on his behalf in the performance of a specific business.

General power of attorney: is a unilateral act by which the representative confers on the representative the power to act in his name and on his behalf in the performance of all the affairs of the represented person.

The figure of the specific prosecutor

It is important to stress that some consider there to be a kind of third category of power of attorney, the specific one.

The specific power of attorney, must not be confused with the special one, concerns the accomplishment of a series of specific affairs of the represented.

Not everyone admits the existence of this third category of power of attorney, because in fact some people make it part of the macro group of the general powers of attorney.

Power to sell and power to buy

It is also useful to specify that, in many legal areas and even when talking about real estate sales, you can confer:

Power of attorney to sell: the represented is the seller owner. The representative goes to the notarial deed on behalf of the seller. The effect that is produced directly in the legal sphere of the represented is the alienation (sale) of the real estate bought.

Power of attorney to buy: the represented person is the one who intends to buy the property. The representative goes to the notarial deed representing the buyer. The effect that is produced directly in the legal sphere of the represented is the purchase of the real estate.

How to give special power of attorney to buy or sell a property

In this article we deal specifically talk about the case of the purchase of a property with special power of attorney to buy; but remember that the same rules are also applied to the special power of attorney to sell a property.

The prosecutor, pursuant to art. 1392 civil code “has no effect unless it is conferred by the prescribed forms for the contract to be concluded by the representative”.

Pursuant to art. 1350 civil code the real estate purchase must be by public deed or private writing.

To this must be added that for the transcription of the sale and purchase in the real estate registers, pursuant to art. 2657 civil code, the form to be respected must be one between the public act or the notarized private writing.

It is therefore easy to understand how, from the combined disposition of all the above-mentioned articles, it turns out that even the special power of attorney to sell or buy a real estate must be drawn up with the same forms as the public act or the notarized private writing.

Power of attorney: the language

In the event that those who confer power of attorney do not know the Italian language, several scenarios can be opened:

– If the notary and the witnesses know the foreign language: the deed can be written in the foreign language, and must bear the italian translation;

– If the notary does not know the foreign language: the deed will be written in Italian and translated into the known and understood language of the represented.

In this case, the interpreter plays an essential role because must be present at the time of the deed, read the deed in a foreign language and sign it.

It will also be necessary to have one or two witnesses who know the foreign language of reference, depending on whether the represented is or is not able tu undersign the deed.