The Land Registration System in Italy
Principles, organization and evolution
Aldo de Luca
Central Director Land Registration
and Legal Affairs
Rome, November 20th 2014
The principle of real consent:
a dogma difficult to be overtaken
The civil law principle that applies to immovable transactions is known as
«principle of real consent» and is provided by art. 1376 of the current Italian
Civil Code, inspired by the Code Napoléon. This principle, which affirms the
primacy of the individual against the feudal domain, led to the assertion of a
private will, consolidated in the agreement, capable on its own of producing
effects not only between the parties but also “erga omnes”.
In Italy, as in the other countries of Napoleonic law, the principle of “real
consent", incorporated by the Civil Code of 1865 in the category of the
“real effects contract”, was balanced by a system of rules for the
transcription of real estate transactions, inspired by the French law of
1855.
Principles
The fundamental principles that inspired the Italian system of
transcription are totally opposed to those that govern the Germanic
systems of “Title Registration" (“Grundbuch” in Austria and
Germany).
The process of transcription is more agile and quick than the “Title
Registration” process and this depends on the following
circumstances:
• Transcription has no probative value; therefore the work and
responsibility of the Registrar (Conservatore) does not extend to
the examination of the validity and substantial efficacy of the title;
• Transcription does not constitute the real effect - acquisition of
ownership - having mainly declarative effects.
To avoid the danger of huge gaps in the registers, the Italian
legislator provided some measures:
•
•
•
the obligation for the notary, who received or authenticated the
deed, to apply for transcription in the shortest time possible
(art. 2671 Civil Code)
the widespread legitimation to apply for transcription,
irrespective of the existence of a legitimate interest (art. 2658
and 2659 Civil Code)
the introduction of the continuity principle, regulated by art.
2650 of the Civil Code
1. Continuity of transcriptions
The introduction of the continuity principle is the breaking point with respect to the
original model of register of deeds:
(art. 2650 of the Civil Code)
"Where [...] a deed of acquisition is subject to transcription, the following
transcriptions or inscriptions against the acquirer will have no effect if the previous
acquisition deed has not been transcribed. Once the previous acquisition is
transcribed, the following transcriptions or inscriptions will produce effects according
to their respective order, except for what is provided in art. 2644 ".
2. Declaratory function of transcription
The transcription of a deed in the Register fulfils a declaratory function in
respect of the “exceptionability” principle
(art. 2644 Civil Code, in relation to the articles 2643 and 2645)
This is the tipical effect of transcription
The “exceptionability” principle represents a sort of limitation to the
principle of the “real consent” provided by art. 1376 of the Italian Civil
Code, to the extent that transcription ends up by also having a
discriminatory function between conflicting real rights coming from the
same assignor.
This effect can be clearly understood when the first who transcribes is also
the first who acquired the right
1°
2°
1°
The case is different when the second acquirer transcribes first:
in this case transcription plays a role, rather than declarative, “constitutive” because
the transmission of the right without transcription doesn’t produce any real effect, nor
between the parties (as acquiring a non domino) nor erga omnes.
The second acquirer transcribes first
1°
1°
2°
2°
3. Further effects
Constitutive efficacy was attributed to the case when the fulfillment of the formality
completes the acquisition:
•
foreclosure, ex art. 555 of Civil Procedure Code
•
conservative seizure, ex art. 679 of Civil Procedure Code
have been inserted by the doctrine in this category.
Transcription plays, in the cases covered by Art. 2652 (transcription of legal claims) a
reservation function for the effects of the judicial decision that is going to be issued:
deeds transcribed and inscribed against the respondent during the course of judicial
proceedings will be unenforceable to the victorious claimant.
A further hypothesis of transcription with reservation efficacy is the transcription of
the preliminary contract, regulated by art. 2645 bis
The Land Registry Organization
Land Registries can be defined as an unicum of registries and deeds
• stored and preserved by the Registrar, as provided by art. 2679 of the
Civil Code
and
• properly ordered to be made available to the public for consultations
and copies and issue of certificates
Complementary Registries
Book of surnames and Table of surnames
Repertories
Registries provided by the Civil Code
General Order Register
Special Registries of Transcriptions, Inscriptions and
Annotations
The tecnological evolution of Land Registration
services
Notaries’ duties in the civil and fiscal field after the conclusion of a real estate
contract.
Land Registry
exceptionability
Deed
Changing the
holder in
cadastre
Registrar’s
and
Cadastral
offices
Cadastre
Tax
Office
Taxes payment
Tax Office
Before Automation...
NOTATION
Court
DEED
The legal bases of the land services automation were provided by the Law
n. 52 of the 27 February 1985
The automation process was carried out in steps
In the 8o’s:
In the 9o’s:
The model had to be
submitted in a device
fit for computer
processing
The model for entering
notations had been
mechanized

Searches via internet
started
2000
The single on line model
2012:
The on line deed
Since the 80’s:
Notation in paper format,
electronically transmitted
by an operator, to the
central system
Notation
Since the 90’s:
Notation are submitted
in a device fit for
computer processing
and
Searches are made via
internet
2000:
telematics single model
Cadastre
Land Registry
Notary
SISTER
MUI
Bank
2012:
DEEDS in Digital
Format
Land Registry
Cadastre
results of formalities
processing
Ufficio delle
Entrate
SISTER
platform
Single model
Payments
details
Notary
Electronic deed
In XML format
Deed 1
Electronic
connection
Electronic
document in
XML format
RNI
National
interbank
network
Deed 2
Deed n
Receipt
Digital signature
Bank
Electronic Land
Registries
Evolution lines
Digital preservation
Deeds submitted in digital format are kept in accordance with the Digital
Administration Code (CAD)
Land Registries are constituted in electronic format
The DPCM, to which art. 40 of the Digital Administration Code refers, will
establish the date from which all registries in electronic format will have full legal
value instead of paper ones
Electronic Land
Registries
The computerization of paper deeds
In order to preserve from decay our current paper archives, a
project is in progress to computerize the old search registries and to
put in digital format the names of the subjects included in them.
At the completion of this project, searches will be done
totally on line, irrespective of the interested period
The integration between the two databases,
cadastre and land registries
The A.I.I is a new integrated information infrastructure that, in compliance
with the current legislation, uses and integrates data managed by the
Agency (cadastral and land registries), created and originally maintained
separately. Its goal is to certify, for fiscal purposes, the situation of the
integration between the two data bases, aiming at identifying, for each
real estate unit, the person holder of real estate rights.
Integrated real estate register
Real estate
taxpayer
1.
2.
Owners
Holders
Cadastre
Cartography
Declarations
by private
parties
Deeds to
update rights
Land
Registries
1.
2.
Titles
Notes
OMI
The project called “Register of Holders” is operating within the described
scheme, to create the data base of “Real estate taxpayers”, strictly linked
with two other databases:
- the land registries, including deeds creating, modifying or transferring
real estate rights;
-
the tax register, that focuses the issue from the taxation point of view.
The measure of the integration level between the cadastral and land
registries data bases, only possible for the computerized period, has
recently showed that the univocal correspondence exists only for 44% of
buildings and 30% of land.
As a consequence, this project aims at identifying for fiscal purposes the
“holders” of real estate rights related to each property registered at the
Cadastre, through:
• the deeds maintained in the land registries;
• the declaration made by the interested parties to register the property at
the cadastre.
In conclusion, our system has taken two directions:
1. Computerization, since 1986, has made possible an easier and quick
access to the registry and a higher level of security and precision in
achieving the effects of publicity, with advantages not only for its users,
but also for people that must rely on the registry efficiency.
2. The integration between cadastral and land registries data bases,
through which it will become possible to create a relation between the
real estate data included in the legal deeds and the holders.
These evolutions don’t make the system similar to a title one, based on
real folio principle, nor modify the transcription scheme, that remains
anchored to its tradition and principles.
Thank you for your kind attention