Encumbrances (Section C)
- LR information on mortgages
MORTGAGE
Original name: IPOTECA
Definition of this right: Mortgage gives to the creditor the right to dispossess – even toward a third party buyer – all the goods which protect his credit.
Italian Civil Code (art. 2808).
Type of right according to national classification: “Security rights” “Guarantee rights” or “Rights of security”
Observations: It can be voluntary, legal or judicial, depending on the title which creates the lien.
1.1. With respect to the mortgage liability, the Italian –Libro fondiario- 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. LR extracts shall include separately information about these three types of debt].
1.2.Regular LR information in this system also comprises ordinarily:
1. Deadline of the mortgage (the registration of a mortgage expires after 20 years; it is possible to enter a short period -temporary enter-).
2. Name of the mortgagee or creditor.
3. Name of the mortgagor or debtor (if mortgagor and debtor coincide, the name can be found in section B); if not, debtor name is not included in LR information).
However, there should not be expected any information about the contract or basis of obligation guaranteed by a mortgage, deadline of the loan or credit or other contract which is basis of the mortgage, the deadline of the mortgage or 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.
2. When two or more mortgages are registered, creditors can agree to change the rank of the mortgages. In this case there’s a registration linked to the mortgages that warns that the mortgage rank has been changed. It is also possible to change rank between mortgage and other property rights.
- LR Information on property rights
In this LR system these are the following:
USUFRUCT
Original name: USUFRUTTO
Definition of this right: The usufructuary can use and enjoy the good. He must not change its economic function.
The duration of the right cannot exceed usufructuary’s life. If Usufructuary is a legal entity, the duration of the right cannot last more than 30 years.
Italian Civil Code (art. 981)
Type of right according to national classification: “Rights of use”
RIGHT TO USE
Original name: USO
Definition of this right: The one who has the right to use a good, can use it and if it produces profits, he can get them for his and his family’s needs.
Italian Civil Code (artt. 1021,1023-1026)
Type of right according to national classification: “Rights of use”
RIGHT TO HABITATION
Original name: ABITAZIONE
Definition of this right: The one who has the right to habitation on a building can live in it with his family. Italian Civil Code (artt. 1022-1026)
Type of right according to national classification: “Rights of use”
EASEMENT
Original name: Servitu’
Definition of this right: It is an encumbrance on an immovable property (servient plot) for the benefit of another plot (dominant plot), belonging to a different owner.
Type of right according to national classification: “Rights of use”
Observations: As it happens in Spanish Law, there are different kind of easements:
Necessary requisites are:
– praedialitas (predium = plot): the encumbrance lies on an immovable property for the benefits of another immovable good;
– nemini res sua servit: servient tenement and dominant tenement must belong to different owners;
– vicinitas/utilitas: the two plots must be nearby or they must find themselves in a serving relationship;
– the owner of the servient plot has not an obligation to do something, but only an obligation not to do (non facere) or to tolerate (pati).BUILDING RIGHT (SUPERFICIES)
Original name: SUPERFICIE
Definition of this right: The owner can constitute the right to build and keep over (or under) the soil a building in favour to another person, who becomes the owner of the building.
The owner can also transfer an existing building, keeping for himself the property of the soil.
It can be perpetual or for an established period of time.
Italian Civil Code (artt. 952-956)
Type of right according to national classification: “Rights of use”
ENPHYTEUSIS
Original name: ENFITEUSI
Definition of this right: The holder of the right of enphytheusis has the same rights of the owner on the outcomes of the land (and can use the subsoil). He must improve the plot and pay a rent.
Enphytheusis can be perpetual or for an established period of time (more than 20 years).
Italian Civil Code (artt. 957-977)
Type of right according to national classification: “Rights of use”
- Information on judicial restrictions included in Section “C”
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) Information on judicial restrictions or charges forms part of the regular land register extracts
b) 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. - Information about other restrictions
LR information does not include orders of attachment or seizure from administrative authorities.
In this system fiscal burdens are unknown.
