The role of the Italian Notary (“Notaio”) derives from the tradition of Roman-Latin culture in which the Notary would draw up legal documents and deeds for the Roman Emperor. The Notary can also be found in most other countries which are based on the civil law system (as opposed to the system of “common law” system of England and Wales), and should be distinguished from the Notary Public or Scrivener Notaries.
The Italian Notary is a qualified legal professional with a law degree who is appointed as a public officer, acting on behalf of the State. The Notary has to pass an onerous exam in order to be appointed to the role and only a fixed number can be in practice at any time. There are estimated to be in the region of 5000 Notaries currently practising in Italy.
The role of the Notary is to guarantee that contracts have legal certainty, as the civil law system places a strong emphasis on the reliability of written evidence, and also that the parties to the contract are adequately protected. The Notary must ensure that both parties understand the process and that any contract complies with the law and the terms of the agreement reached by the parties themselves.
Original copies of all contracts or deeds will be filed in the Notarial Archives and thereby rendered “public” documents which can be accessed by anybody on reqeust.
The Notary plays a completely different role in the legal profession from that of practising lawyers or attorneys in Italy (“Avvocati”). The Notary is impartial and is forbidden to take the side of one party to the detriment of the other.
The Notary is most commonly known to international residents of Italy as the official who reads through the contract of sale or purchase of property at high speed, witnesses the signatures of the buyer and seller, collects in the taxes payable by the buyer, and formally registers the contract with the Land Registry. This is a process far removed from a conveyance in a common law country where the parties rarely meet in person, where contracts are “exchanged” remotely by independent lawyers acting for each side and funds are transferred by instant Chaps transfers.
In Italian property law, the buyer is entitled to choose the Notary who will witness the sale/purchase contract. The buyer is recognised as being the weaker party in the transaction who may need additional protection. The buyer will also be resonsible for paying the fees of the Notary.
In addition to overseeing property transactions, the Itaian Notary will also be instructed on matters such as company formation, mortgage contracts, power of attorney, wills and estates, deeds of gift or division, and matrimonial property agreements. The Notary is the only designated authority in Italy who is competent to issue a Certificate of Succession in cross-border estates.
Since 2023, the Notary also is entitled to intervene in areas which formerly fell only under the competence of the Voluntary Jurisdiction of the Italian Civil Court (Art. 21 of Decreto Legislativo n. 149 del 10 ottobre 2022). The new powers allow in particular an alternative route for authorisations to be given by a Notary, in cases of minors or persons lacking legal capacity. These new powers will allow parties to bypass the office of the Guardianship Judge (Ufficio del Giudice Tutelare) which is currently lacking a sufficient number of judges to allow the court system to work rapidly and efficicently. Guidance was recently issued by the Ministero della Giustizia on these new powers: Circolare maggio 2023.