What is a “procura speciale” & why would I care?
What a procura speciale (limited power of attorney) is
In law it is possible to delegate the management of one’s affairs, or part of one’s affairs, to another, through a legal tool called a power of attorney. In the Italian legal system, this is called a procura. A limited power of attorney, limiting the scope in which someone can act on someone else’s behalf, is called a procura speciale, special in the sense of limited.
Why a procura speciale is useful
When buying or selling property, a buyer or seller may find it impractical to complete certain formalities, such as attending the closing (title transfer, conveyancing), in person.
There may be other times when a property has multiple owners, such as often occurs when family members inherit a property together, and a decision is reached by the various owners to greatly simplify the sales process by formally appointing one person to represent the interests of one and all. Such a situation is much more appealing to a potential buyer who well may be deterred to waste time making an offer on a property if there are 3 or 4 people who have to agree. The sellers may know that they are all “on board” to sell, but the buyer certainly doesn’t.
In other situations a buyer or seller, although of sound mind, may not want the hassle and stress of performing such an important task and may wish to entrust it to the hands of another person.
A power of attorney can also be useful when a person needs to perform legal transactions in a foreign language they don’t understand. Rather than having to translate myriad documents, the interested party will chose to have someone else who knows the language do everything for them.
In most cases legal documents in Italy must be Italian. Public documents in some border areas may be in Italian and/or the local language, e.g. German in Südtirol.
What a procura speciale contains
As a document, a procura speciale includes details to identify the person (“dominus“) or persons who are authorizing a third person “procurator” to act in their interest, on their behalf, as well as the details of the person who will complete the task or tasks. Such information would include full legal names, including middle names, the date and place of birth, their current place of residence. Note that in Italy women legally maintain their maiden names.
The limited power of attorney will define the task or tasks at hand. Article 1708 of the civil code states that providing authority to complete a specific act includes all other acts necessary to complete the act. In the case of the purchase or sale of specific property, the procura speciale will include information necessary to unequivocally identify the property, such as the physical address and the catasto (land registry) coordinates: foglio, particella (a.k.a. mappale) and subalterno (page, parcel and subordinate number).
In the case of a property purchase, a maximum price would be noted. In the case of a sale, a minimum price would be noted.
It must be in writing and signed in front of a public official
A limited power of attorney to buy or sell a home in Italy must be in writing. The signing must by witnessed by a notary or by a public official (e.g. consul at an Italian consulate, town clerk of an Italian city or town) and the identities of the signers verified. This ensues that neither of the parties can later disavow the document for any reason. The notary or public official will ask the person or persons providing a power of attorney to confirm they understand the powers they are entrusting and that the transfer of power represents their free will. The signer(s) must also be of sound mind. It must be clear who the public official is who is witnessing the power of attorney and the document must be dated.
Italian citizens outside Italy
Italian citizens abroad may ask an Italian consul to witness the signing except in Austria, Belgium, France, Germany and Latvia. In these countries the Italian consulate no longer offers notary services, with the justification that local legal notaries can do the same thing. The reality is more complicated. The local notaio will want to ensure the person signing over power of attorney understands the content of what they are doing and will most likely ask for a legal translation of the power of attorney document into the local language, something which is costly and time consuming.
Non-Italian citizens outside Italy
Non-Italian citizens will have to follow the local process to confer power of attorney, ensuring the local process would include the minimum essential elements required for the document to be valid in Italy. Consult with a notaio in Italy to best understand what is required to ensure the locally issued power of attorney would be acceptable for use in Italy. Keep in mind the local official may well want a translation of the document for which they are witnessing a signature if they don’t speak Italian. In many countries, but not all, it is necessary to “legalize” the power of attorney for use in Italy by obtaining an “apostille”.
Who drafts the power of attorney for a property sale or purchase?
For the purchase or sale of a home in Italy, the interested party should ask a notaio to draft the procura speciale with all of the pertinent details as to the people and property involved. Alternatively an Italian lawyer well versed in property issues (many are not, this is normally the realm of the notaio in the civil code legal system) would be able to draft a procura speciale.
To register or not register, that is the question
The limited power of attorney can only be used for one legal act if it isn’t registered as it needs to be incorporated in to the act. It isn’t possible to refer to an earlier act which includes it nor to copy it.
If the limited power of attorney is registered, the original stays with the notaio who registered it and who issues copies as required. A registered power of attorney will cost more but is more flexible.
Expiration and revocability
A limited power of attorney will normally expire at the time of a person’s death or if it is expressly revoked. A power of attorney can be made irrevocable, even if the person dies or loses control of their mental facilities (enduring or durable power of attorney). This is an asset in negotiating a property sale as the parties have greater certainty against circumstances changing.
Note: The information contained herein is intended as a general introduction to this topic. It does not substitute the need to consult with a notaio or other legal professional regarding specific circumstances. Some information may be incomplete, incorrect or out of date.