BY PAOLO SMALL*
The new law on the protection of buyers in the event of bankruptcy of the manufacturer takes a significant step forward in the quality of our legislation, in terms of the protection of the contractually weaker party, but at the same time it has limited its ambitions, renouncing to broaden the field of protection that every buyer deserves.
Already the negative experience gained in the application of the legislation that allowed the transcription of preliminary contracts should have acted as a pressing warning to the legislator: but everyone knows that the market has preferred to continue the practice of subtracting a part of the agreed consideration from the tax authorities rather than taking advantage of the considerable protections that derive from the transcription of the contract.
The real problem is therefore the fiscal one and the new law - perhaps also due to the limits imposed by the enabling law - has not addressed with sufficient completeness the issue of transparency of real estate negotiations in line with anti-money laundering legislation.
The Notaries, who experience these problems 'in the field' on a daily basis, have an exact finger on the pulse of the situation and have long put forward proposals that would resolve the problem at its root, to the satisfaction of all the interests at stake.
The hope is that the legislator has the sensitivity to also address these issues and in particular the problems caused by the difference in amounts between the consideration and the minimum tax value.
Once the tax problem has therefore been resolved, the new law would offer better protection for the purchasing party: moreover, the case of 'crisis' that the new law contemplates is 'limited' only to the bankruptcy of the entrepreneur, when instead an effective completeness of the protection of the purchasing party would be achieved (which the law forgets) if the 'crisis' cases also included the whole series of events which, between the preliminary contract and the deed, can jeopardize, as much as the bankruptcy, the expectations of the purchasing party to obtain ownership of the property promised for sale.
Finally, in a cost/benefit calculation, if it is true that the new law offers protection through the provision of insurance and a surety, it is also true that the cost of these practices will inevitably fall into the sphere of the buyers, who will therefore acquire protection, but at their expense. As for the guarantee, it would have been preferable if the legislator had required it 'on first request' and that the capitalization requirements of the guarantors had also been required so that their solvency was guaranteed.
The hope is therefore that the satisfaction with the result obtained does not end up being contradicted by the facts.
* President of the National Council
of the Notary
source: Real Estate Observatory
Grimaldi Padua
Padua - 35137 - Via G. Matteotti, 27
e-mail: padovacentro@grimaldifranchising.it
Tel. +39 49 663 033 - VAT number 05301660287
Grimaldi Cadoneghe
Cadoneghe (PD) - 35010 - Via G. Franco, 2/A
e-mail: cadoneghe@grimaldifranchising.it
tel. +39 049 88 736 56 - VAT number 05322440289