Q. What is a notaio (civil law notary) and what do they do?
A. In the Italian civil code legal system (differently from the common law system), the notaio, a legal notary, not to be confused with a simple notary public who witnesses signatures in the Anglo-saxon common law system, is a public official and legal professional who guarantees the validity of documents such as contracts, deeds and wills. The notaio confers public trust, the status of legal proof, to the deeds and other documents he or she oversees. The notary must, by law, be independent and impartial: they must protect the interests of all parties equally, regardless of who has selected them.
In the case of a property deed, a notaio will need to verify the identities of the buyer and seller or their representatives (e.g. with a limited power of attorney). They will need to verify the seller does indeed have title to the property and will note any limitations, e.g. mortgage or other liens (legal due diligence).
The notaio also collects taxes due on behalf of the state and performs anti-money laundering checks. Since 2017 the notaio offers a legally protected escrow facility for those who wish to use it.
In real estate transactions, it is normally the buyer who selects and pays for the notaio as the buyer is considered the weaker party in the transaction.
The deed will be in Italian. A notaio may have the deed translated in other languages and may oversee a property transfer in English or another language as long as they know the language. If they don’t, a simultaneous translator will be required or the parties which don’t speak Italian can provide a limited power of attorney to someone else to act on their behalf.
Like all professionals, some notai are more thorough and scrupulous than others. Many rely on office assistants to perform much of the work behind the scenes. Some may be in cahoots with someone who has an interest in a transaction happening: e.g. the seller and/or the real estate agent. In general a buyer should avoid using a Notaio suggested by their estate agent, and while I am a real estate agent, I understand that not all of my colleagues can be counted on to do the right thing.
Those familiar with the common law legal system will be asking what a lawyer / solicitor does if the notaio performs the legal work in the civil code system. Italians will rarely use a solicitor / lawyer for a residential property transaction. Foreigners may still want to engage a lawyer as a lawyer can provide a valuable confirmation as to the correctness of notaio’s work – for many a lawyer’s fee is an excellent insurance policy. A lawyer can also act on a buyer’s behalf in the case the buyer doesn’t speak Italian (but they should not be used to hold funds, only a notaio can provide a legally protected escrow account service).
Do note that legal professionals do not perform technical verification, including on site surveys. They will not check property boundaries. They will not be able to ensure building and occupancy permits exist if appropriate. This is the work of a qualified technical professional: an engineer, architect or geometra.