Purchasing an Italian Real Estate with a cultural pre-emption lien

Introduction

In Italy, especially with reference to those properties that we classify as ‘luxury’ or however of particular value (but not only), we can find ourselves having to deal with the so-called ‘cultural pre-emption lien (or constraint)’. This lien is also known in practice in many ways: cultural lien, fine arts lien, cultural asset, and others.

Someone, especially those unfamiliar with our legal system, may identify it as ‘a huge obstacle’.

But this is not the case, since it is sufficient but at the same time essential to know and handle it correctly in order to properly inform and advise especially those interested in purchasing the property.

What is the cultural pre-emption lien

Cultural pre-emption lien is regulated by the Code of Cultural Heritage (Legislative Decree no. 42/2004), and concerns those assets in respect of which a declaration of cultural interest is notified by the competent Superintendency of Fine Arts.

This happens when an asset, whether movable or immovable, is of considerable archaeological, historical, artistic, anthropological, bibliographic or archival interest.

The lien therefore aims to safeguard and protect the property as well as its state of conservation and maintenance.

What he cultural pre-emption lien entails

The cultural pre-emption lien entails certain non-negligible obligations for the owners or for the buyers of the relevant property.

Among these are:

– the guarantee of safety and state of preservation of the property;

– the guarantee of access to those in charge;

– the protection of the original state of the property, in other words, the limitation of modifications as well as restorations. This does not mean that every type of intervention is impossible to carry out, that before proceeding, authorisation must be obtained from the Ministry of Cultural Heritage;

– right of pre-emption in favour of the competent Ministry in the event of sale or transfer of the real estate.

What is the right of pre-emption

Before proceeding, it is important to recall what is meant by the right of pre-emption.

Pre-emption is the right that a person has to be preferred on equal terms.

Pre-emption may be voluntary, when it is provided by the parties, or, as in the case of cultural pre-emption, legal, having the law as its source.

In the present case, therefore, it is the possibility for the Ministry (or the Region, in specific cases) to purchase cultural assets that are alienated or contributed to a company under the same conditions, exercising the right of pre-emption.

Cultural pre-emption lien and the purchase of an Italian real estate

The presence of a cultural pre-emption lien gives rise to a real estate sale and purchase that is divided into stages and in which it becomes necessary to comply with a series of requirements.

Step 1: the notarial deed

The first step is to draw up and undersign the notarial deed of sale.

The deed must contain all the formalities generally indicated for the real estate transactions and, in addiction, the specific mention of the presence of the lien.

Step 2: Reporting the transfer

Article 59 of the Code of Cultural Heritage provides for the notification to the Ministry of acts that transfer, even partially and for any reason, the holding or ownership of cultural property.

The report must be submitted to the competent Superintendency in relation to the place where the property is located, and must have a specific content.

The report must be made within 30 days, and may be made:

– by the transferor or seller: in the case of a sale or transfer to a company. In this case, the time limit runs from the date of the deed;

– by the purchaser: when the transfer is compulsory and takes place within a sale Court procedure. In this case, the time limit runs from the time of transfer;

– by the heir or legatee: in the case of succession. The time limit runs from the moment of acceptance of the inheritance or submission of the declaration, or from the communication pursuant to art. 623 of the Civil Code (communication to heirs and legatees of the presence of a will).

Step 3: The Italian State’s right of pre-emption

From the date of receipt of the complaint, the Italian State has 60 days to exercise its right of pre-emption.

Hence, in this case the transfer of the real estate, is not immediate upon stipulation of the notarial deed, but is suspensively conditional upon the failure of the Superintendency to exercise this right of pre-emption within the specified time limit.

When all the steps are correctly completed and the State does not exercise the right, or exercises it late (after the deadline), the transfer of the property becomes definitive.

What to pay attention to

It is undeniable that purchasing a property subject to this type of lien means obtaining a property of high prestige and value.

At the same time, however, without being discouraged by the presence of the this kind of lien, it is important to remember that all the necessary steps must be followed precisely and in accordance with the terms.

In the event that this is not done, the right of pre-emption can be exercised within 180 days from the moment the Ministry receives the late notification or otherwise acquires the elements.

It is important to emphasise in this regard that failure to comply with the indications does not only occur in the case of failure to report, but also when there is a late or incomplete report, or a report submitted to the Superintendence that is not competent.

Precisely for this reason, specific management becomes of fundamental importance. In fact, it is not enough just to file a complaint, but it is also necessary to do so in a comprehensive manner, precisely identifying the competent Superintendency, and punctually calculating the deadlines to be respected and the day from which these begin to run.