The deposit of the price by the notaryThe deposit of the price by the notary
THE REASON OF THE NORM
The legislator has always been concerned with providing effective protection for those who buy the house: so in 1996 it provided for the possibility of transcribing the preliminary; in 2005 the obligation of the builder of "new or refurbished" houses to deliver to the promissory buyer a surety to guarantee the risk of his bankruptcy pending between the preliminary and the definitive.
With the law on competition (law n.124 / 2017, article 1, paragraphs 63 and following, which entered into force on 29 August), it has closed the circle by providing for the purchaser's right to request the deposit of the price to the notary notary until the transcription of the sale contract.
Those who buy are exposed to the risk that, between the date of the deed and the date of its transcription in the aforementioned registers, an unexpected burden will be published against the seller: a mortgage, a seizure, a foreclosure, a judicial request, etc. Scenarios of the type just described have occurred very rarely. Notaries in fact fulfill the obligation of transcription in a very short time, almost eliminating the risks.
The traditional "scene" (on the deed the seller delivers the keys and the buyer pays the price) is therefore destined to change. In fact, the new law states (importing into Italy a practice already in force in France for some time) that if it is "requested by at least one of the parties", the notary must keep the balance of the price intended for the seller in deposit until it is executed the advertising formality with which one acquires the certainty that the purchase has been completed without suffering burdens.
EFFECTS OF THE DEPOSIT
The sums that the notary sees to be paid by the buyer (and which must necessarily be registered not to the seller, but to the notary himself) will be segregated by him on a dedicated current account that he has specifically opened in the bank for the purpose of " dedicated account pursuant to Law 147/2013 ".
These sums are absolutely safe: both because they are separate from the notary's assets (they do not fall in his succession, in the event of premature death; they do not go to the spouse's legal communion; they are unencumbered by his creditors) and because they are also unencumbered by creditors of the seller.
Not only. The interest income produced by the dedicated account benefits small and medium-sized enterprises.
POSSIBLE FURTHER USES OF THE PRICE DEPOSIT
The deposit of the price protects from the risk of transcripts or prejudicial encumbrances in the delays between the signing and the transcription of the deed.
But it can be useful to the parties in the following hypotheses:
1) PRESENCE OF A FORECAST OR A PREVIOUS MORTGAGE - The house is burdened with a foreclosure or mortgage. In practice it is agreed that the price will be paid only after cancellation of these formalities.
2) HOUSE SUBJECT TO LEGAL PRE-EMPTION - The property is subject to legal pre-emption. In action it is agreed that the price is paid once the possibility of exercising the pre-emption has ceased.
3) HOUSE NOT AVAILABLE - In the deed it is agreed that the price will be paid only upon presentation of the certified report of viability.
4) HOUSE NOT FREE FROM PEOPLE OR THINGS - The property is still occupied by the seller. It is agreed that the price is paid only upon delivery of the house to the buyer free of people and things.
5) PRESENCE OF SELLER'S DEBTS - The seller has not yet paid all the condominium expenses at his expense (eg extraordinary expenses approved before the deed for works not yet carried out at the time of stipulation). In order to guarantee the buyer (who could be called to answer for these expenses pursuant to art.63 disp. Att. Cc) the sums necessary to cover these expenses are deposited with the notary with the appointment of the notary to make the payments requested by the condominium administrator.
OPTIONALITY OF THE PRICE DEPOSIT
Unlike in France, the protection of the price deposit is optional: in the deed, the buyer, depending on the case, can opt to make use of it or waive it.
It would be in accordance with fairness and good faith in the negotiations between the parties (and also in relations with the notary) for this option to be expressed in time for the seller to organize. However, nothing excludes the possibility that in the face of serious and unforeseeable reasons, the option can also be expressed directly upon stipulation.
PROTECTION ALSO FOR THE SELLER
The deposit of the price guarantees the correct and safe completion of the transfer of money from the buyer to the seller, who will collect the sums after a few days but will not run any risk with regard to the actual collection of the agreed sum.