The Power of Attorney
You can turn to a Power of Attorney if you cannot be present at the moment of the agreement of the contract, by entrusting the task of representation to another person. In this way, you can deliver on time and be protected against the unexpected.
The Power of Attorney is a unilateral formal deed with which a subject, the one being represented, attributes to another person, the representative, the power to represent them.
Through signing the Power of Attorney the one that nominated their representative recognises that this same person will substitute them in the negotiations.
It is extremely useful to turn to the power of attorney for acquiring/selling real estate assets, a process in which an impediment for one of the two parties can occur, and if you do not want to miss the signing of the contract; but it is also useful if you live in a foreign country, or if for health reasons you cannot be present.
The Power of Attorney for the sale and purchase of assets must be conferred in writing, through private authentic writing or a public act, if not it cannot have any effect.
Usually, the Power of Attorney also determines the limits of the terms for the representative.
If the representative does not comply with the limits defined in the Power of Attorney the one being represented is not bound to the contracted parties.
Variations or repeal of the Power of Attorney must be brought to the attention of everyone with all the appropriate methods.
Failing clear communication the law protects the third party in the case (art. 1396 of the Civil Code).
The one being represented, unless they do not manage to show that the third party knew the conditions that had changed at the time of the conclusion of the contract, remains bound and will be able to make a claim against the representative.
The General Power of Attorney
The Power of Attorney is defined as general when the one being represented entrusts to the representative the management of all their affairs, either present or future. This is no longer in effect with a repeal.
The general Power of Attorney is granted in order to bring an end to a series of legal acts, so it is for the most part used in entrepreneurial businesses and activities with the nomination of agents, professionally qualified figures who, thanks to their management expertise, are invested with the power of representation.
In the case of real estate purchases a special Power of Attorney is advised, which would limit the representative’s range of actions.
Special Power of Attorney
The Special Power of Attorney for real estate acquisition is an act meaning you can give the responsibility to someone else to act in their stead and representation in order to fulfil all the acts necessary for the realisation of the sale or acquisition of a property.
The special Power of Attorney limits itself to conferring the task in order to be able to bring to an end a specific affair, which is why it stops being valid at the moment the act for which it was drawn up ends.
At the moment of the agreement it is advisable to specify in a detailed way the powers conferred to the representative in order to avoid future objections.
The special Power of Attorney for real estate sales must be made with a written deed jointly signed by two spouses.
If the special Power of Attorney is finalised for the sale of a property, a copy of the deed for the property must be presented.
Repeal or modification of the Power of Attorney
The Power of Attorney can be modified or revoked at any moment, unless in the deed it was not specified that the Power of Attorney was irrevocable, but that doing so must be communicated promptly to the third party involved coming from the registrations in the Public Registries, based on the type of deed to which the Power of Attorney refers. For revocation/modification the one being represented must present a copy of the Power of Attorney before the Notary Office and present all the information necessary for its identification.
The Power of Attorney and resident citizens abroad
The law also consents to the Consulate being able to confer a Power of Attorney for Italian resident citizens abroad.
It is enough for the person in question (the one represented) to go to the Italian consulate of the country in which they are resident with an identity document.
In this case the special Power of Attorney for the sale of property will have to be drawn up in Italian.
If the Power of Attorney has been drawn up in the language of the country of residence it must be addressed to a public notary of that country, then authenticated with an Italian notary, to whom the translation will also be shown..
Expert real estate lawyers at Boccadutri International Law Firm will be able to guide you as best they can in the choice and writing of the Power of Attorney that is the most adapted to your interests.
To contact a lawyer from our law firm, contact us here.