Encumbrances (Section C)

MORTGAGE

Original name: IPOTECA

Definition of this right: Art. 2808 of the civil code:

“Hypothec gives a creditor the right to foreclose, against a third buyer too,  the asset which guaranties his credit, and to be satisfied with preference on the price obtained from expropriation.”

“Hypothec may have as object debtor’s assets or assets of third parties, and it is constituted through the inscription in the Land Registry”

“Hypothec is statutory (art.2817, c.c.), judicial (art. 2818 ) or voluntary (art. 2821).”

Type of right according to national classification: “Guarantee real rights” Diritti reali di garanzia

Observations: – Statutory mortgage has its origin in the law, and guarantees the seller or the sharing party for the residual price or the balance in a division. It must be registered under the Registrar’s responsability.

– Judicial mortgage has its origin in judgments, cease and desist orders and ordinances that convict the borrower to pay a sum or to fulfill another duty.

– Voluntary mortgage is registered for the borrower’s or a third party’s will to bind his property and satisfy the creditor

TAX COLLECTING MORTGAGE

Original name: IPOTECHE DELLA RISCOSSIONE

Definition of this right: These mortgages derive from various kind of situations, provided by the laws listed below:

– Avviso di accertamento esecutivo (art. 29, D.L. 78/2010)

-Avviso di addebito esecutivo (art. 30, D.L. 78/2010)

-Ruolo  (art. 77, D.P.R. n. 602 del 1973)

-Sentenza del giudice tributario (art. 22 D.Lgs. 472/1997) ovvero decreto del giudice tributario (art. 22 D.Lgs. 472/1997)

Type of right according to national classification: “Security rights” “Guarantee rights” or “Rights of security”

Observations: These are mortgages that guarantee taxes collection. When the borrower doesn’t pay taxes within the time limit, the tax collector can activate the enforcement procedure.

1.1. With respect to the mortgage liability, the Italian -Agenzia- mortgage system prepares in general one option:

a) Extracts include itemized liabilities arising from the loan, so that can be distinguished amount of loan and the other liabilities due to interests of the loan or others, guaranteed by the mortgage. [E.g. The loan is 100,000 and has agreed interest at 20,000 and mortgage cover up to 10,000 from other debts related to loan.

1.2. Regular LR information in this system also comprises ordinarily:

1. Contract or basis of obligation guaranteed by a mortgage (e.g. a loan).
2. Deadline of the loan or credit or other contract which is basis of the mortgage.
3. Deadline of the mortgage (if a deadline is provided by the parties; otherwise mortgage expires after 20 years from the inscription).
4. Name of the mortgagee or creditor.
5. Name of the mortgagor or debtor.
6. Deed whereby mortgage was constituted or awarded

1.3. With respect to the mortgage rank (preference of the mortgage in comparison with other mortgages or encumbrances), this LR system has the following criteria:

1. Mortgage rank depends on date of registration of the mortgage, so whoever may ascertain mortgage rank taking into consideration the information on the date of registration of the mortgage.

In this LR system these are the following:

EASEMENT

Original name: SERVITÙ PREDIALE

Definition of this right: An easement is an encumbrance imposed on an immovable property for the benefit of another belonging to a different owner. The immovable property in whose favour the easement is constituted is called dominant tenement (FONDO DOMINANTE); the property suffering it, is called servient tenement (FONDO SERVENTE)(Article 1027 Italian Civil Code).

Type of right according to national classification: Diritto reale su cosa altrui.

Observations: There’re many kinds of easements in the Italian Law, characterized by their purpose (right to way, servitude of waters and/or sewers, distance between buildings…). An easement may be constituted through a voluntary deed or by  law.

SUPERFICIES

Original name: SUPERFICIE

Definition of this right: Article 952 of the Civil Code provides that the proprietor can constitute in favour of someone that acquires the property right , the right to make and maintain, upper or under the sole, a building.

Type of right according to national classification: Diritto reale su cosa altrui

Observations: The proprietor is also allowed to sell the property right on the building separately from that of the soil.

EMPHYTEUSIS (Perpetual or long term lease)

Original name: ENFITEUSI

Definition of this right: Art. 959 c.c.

Type of right according to national classification: Diritto reale su cosa altrui

Observations: As Emphytheusis is the widest among others jura in re aliena, it is also named “quasi proprietà”. It’s a system of long term leasing which was very common in Italy during the second half of the nineteenth century,   in order to boost land productivity through the work of the farmers. Derived from the Roman law, Emphytheusis found a complete regulation with the Italian Civil Code of 1865 (when it was included among the contracts), and the subsequent Civil Code of 1942, Articles 957 to 977. The holder (enfitéuta) enjoys the worthwhile domain on the land, undertaking, however, to improve it and paying the owner an annual fee in cash or in goods;  according to the law, the lease can be transformed in property right after at least twenty years, by paying a sum resulting from the capitalization of the annual fee.

USUFRUCT

Original name: USUFRUTTO

Definition of this right: The content of the right is ruled by Art. 981 c.c according to which a person (usufructuary) has the right to enjoy another person’s  property (bare ownership) and to collect fruits, but with the obligation to not modify its economic destination (salva rerum substantia).

Type of right according to national classification: Diritto reale su cosa altrui

Observations: Usufruct comes from civil law, under which it is a subordinate real right (ius in re aliena) of limited duration, usually for a person’s lifetime. The holder of a usufruct, known as a usufructuary, has the right to use (usus) the property and enjoy its fruits (fructus). In modern terms, fructus more or less corresponds to the profit one may make, as when selling the «fruits» (in both literal and figurative senses) of the land or leasing a house.

Usufruct can be constituted by virtue of a contract or by law.

RIGHT OF USE

Original name: DIRITTO D’USO

Definition of this right: Use and habitation are both limited real rights, which differ from the usufruct since the owner can use the property only for his own needs or for the needs of his own family.

Type of right according to national classification: Diritto reale su cosa altrui

RIGHT OF HABITATION

Original name: DIRITTO DI ABITAZIONE

Definition of this right: Use and habitation are both limited real rights, which differ from the usufruct since the owner can use the property only for his own needs or for the needs of his own family.

Type of right according to national classification: Diritto reale su cosa altrui

This information includes LR entries or notices related to restrictions decreed by judicial orders which mean either a claim on the property, or a challenge on the registered title, or an attachment of the property to debts as a result of judicial procedures, etc.

In this system:

a) Means of formal publicity ordinarily contains information about the judicial order that leads to the registration of notices or caveats; about if notices or caveats are temporary or indefinite entries, or warn about this issue.

For purposes of the information, orders of attachment or seizure decreed by administrative authorities lead to administrative restrictions or burdens.

A fiscal burden can lead to a mortgage or a foreclosure. In this case you can find it, as usual, searching against the holder.