You will have heard many times friends, acquaintances, relatives, of the so-called “compromise”, which in reality is nothing more than a preliminary real estate contract. Although it is not mandatory, it would be good practice to stipulate it between the parties when deciding to sell a property, regardless of whether it is a house, small apartment, villa, agricultural or building land, etc …
Anyone can draw up a preliminary sale, although even in this case our very strong advice is always to contact a professional in the sector as a licensed real estate agent, for your own protection and to avoid the unpleasant inconveniences typical of do-it-yourself. you.
The complete guide of WeAgentz, updated to 2021, will explain to you point by point what the preliminary sale is, how it works, how to draw it up with the help of the notary or without it, what the transcription consists of, how to proceed registration with the Revenue Agency. And it does not end here: you can also download all the facsimiles that you will certainly need for all the tasks to be fulfilled, such as that of the contract and the F24 form to be filled in for the payment of the registration tax.
But now we come to the real guide on the infamous “compromise”.
What is the preliminary sales contract?
The preliminary real estate purchase agreement between individuals is a written promise with which the seller of a real estate promises the buyer to sell the same at a predetermined price and date, under specific conditions, all explicitly stated in the preliminary or compromise.
It is therefore a real contract, which obliges both parties to sign the definitive contract of sale by means of a written and binding promise: the promising selling party – who is none other than the owner of the property in question – and the promising buyer. o buyer, by signing the contract they undertake to define the deal in the future, with the definitive contract.
Attention, a form other than the written one is not allowed and renders the contract null and void, therefore never stipulated. The art. 1351 of the Italian Civil Code establishes that verbal agreements have no legal effect and do not protect the parties in the event of default by the promising seller or promissory buyer.
Why “promissory” and “promissory”? What does it mean? It is good to specify that, when we are still in the compromise phase, we are talking about the promissory buyer and promissory seller, as the preliminary sale must recite the formula “Tizio undertakes to sell to Caio” so that the legal effects of transfer they are future and not immediate as in the formula used for the definitive contract “Tizio sells to Caio”.
What to write in the compromise
Remarking again on the importance of the written form, it is understood that entering into a compromise is a serious matter and can lead to penalties in favor of one or the other party in the event of default of one or both of them.
Remember that the preliminary contract of the real estate sale, to be valid, must contain all the following data :
- The particulars of the parties
- The express will of the counterparties to conclude a subsequent definitive contract
- The price, the deposit and the conditions of sale
- The precise identification of the real estate object of sale, including land registry
- The agreements made regarding the subsequent signing of the final contract
- The delivery and placing in possession of the property
- The contractual clause governing the resolution of disputes
- Reference to the rules of the civil code for what is not expressly provided for in the compromise
- Date and signature of the counterparties
Notary yes or notary no?
The preliminary contract of sale can be simple writing between private individuals: in fact, the form of the public deed with the intervention of the notary is not mandatory, nor is it necessary to transcribe the compromise in the public registers of the Land Registry. It will be sufficient, for the contract to have legal value, to obtain the facsimile and fill it in with all the data and clauses listed above, finally sign it and keep it.
So why use the help of the notary for the drafting of the preliminary contract of sale, since there is no obligation? The difference is not only precautionary for the parties, but it is substantial and concrete. After the parties have signed the compromise, in fact, only the notary can provide to transcribe it in the public register of the Land Registry as we have just anticipated and, once transcribed, the contract becomes unenforceable by third parties.
All risks related to non-transcription
This means that in the event that a third party claims rights over that property, for example, he wants to oppose that the owner has already sold the property to him through another previously signed agreement (but not transcribed in the Land Registry), his rights they will take second place compared to those of those who made the transcription and therefore made the deed public.
Trust is good, not trust is better, especially when it comes to signed contracts and the transfer of real estate. Hence, relying on a notary can be the winning move to avoid potential fraud by an owner who promises multiple buyers the sale of the same property or land, sometimes even collecting the deposit from everyone. The notary, through the transcription of the contract, will assure the promissory buyer that he is the first to carry out this transcription at the Cadastre regarding that property and, consequently, that he can possibly prevail even against those who first signed the contract without, however, having transcribed it in the public registers.
As we have seen, from the moment of signing the preliminary agreement, the legal obligation has effect only between the parties in the event that there is no subsequent transcription by the notary. This means that the promising seller could in the meantime try to sell the house to others, establish real rights of enjoyment on it (usufruct, lease, use, housing, surface rights, easements) or register mortgages on the property.
This is undoubtedly a tangible risk for the prospective buyer and, if this were to actually occur, he could not ask the judge to invalidate the sale, nor the mortgage or the real right of enjoyment established on the immovable property. He can only request compensation for damages and moreover, with the sole signature, in case the promising seller contracts debts, the house could be foreclosed or seized.
Usually, whoever is preparing to enter into a definitive contract of sale with a notary, also previously relies on the same notary for the drafting and possible transcription of the preliminary contract. Our advice is obviously to rely on the notary and have the compromise transcribed, in order not to risk running into serious trouble as widely described.
Registration of the preliminary
Now that you know every aspect related to the transcription of the preliminary contract of sale in the public registers of the Land Registry by the notary, let’s clarify what is the registration of the same with the Revenue Agency. Often transcription and recording are confused and exchanged between them due to the unfamiliarity with the procedures on the various obligations: thanks to our guide, you will no longer run this risk.
In fact, within 20 days of signing the preliminary contract of sale, it is necessary to register it at any office of the Revenue Agency, to which it is necessary to deliver the following documents :
- Two copies of the original signed preliminary contract
- Model 69 for the registration of the compromise
- The front/back photocopy of an identity document of the promissory buyer
- The front/back photocopy of an identity document of the promising seller
- A € 16 revenue stamp for every 4 written pages or every 100 lines of the contract
Registration is provided by the notary in the event that the preliminary has been drawn up with his help (as a cost for the total notarial skills we can estimate about 2,000 euros) and with subsequent possible transcription, otherwise one of the parties will have to provide directly.
Once these documents have been delivered, the Revenue Agency keeps a copy of the contract, while the other is returned stamped together with a receipt, which indicates whether the registration tax has already been paid or not. In the event that this has yet to be paid, the registration is carried out “in debt” and it is, therefore, necessary to go to your bank branch to pay the tax using the F24 form.
The registration tax must be paid “fifty-fifty” by the promissory buyer and the promissory seller in equal amounts, so it is better that you agree on the payment, to avoid that both of you pay, or that neither of them does.
Coming now to the forms, below you will find the templates in the digital format necessary for the bureaucratic tasks described above: download and fill them indirectly on your computer, then print them and go to the Revenue Agency for delivery and payment.
What is there to pay at the registration desk
- The registration tax, equal to 200 euros
- A € 16 revenue stamp to be affixed every 4 sides, or once every 100 lines of the preliminary contract
- In the event that the compromise provides for the payment of a deposit, the registration tax to be paid is equal to 0.50% of the deposit
- In the event that the compromise provides for the payment of an advance, the registration tax is equal to 0.50% of the advance
The registration tax paid at this stage in the event of an advance will be subsequently deducted by the Revenue Agency when you register the definitive contract.
The 16 euro revenue stamp must be affixed every 4 sides, but it is necessary to pay attention to the fact that this (or these in the case of 5 or more pages) does not cover any attachments: for the latter, a 2 euro revenue stamp is required for any attachment bearing the stamp of a notary or qualified agency. For any attachments of photos or plans not endorsed by a notary, a revenue stamp of 16 euros is required for each attachment.
Another important thing to know is that revenue stamps must be purchased before the contract signing date, or at the latest on the same day. In the case of a postdated revenue stamp, a fine is incurred.
The instructions for filling in and paying the F24 form
Until 2020 inclusive, the payment of the registration tax was payable through the F23 form, which can no longer be used starting from 2021, replaced by the F24 form. It is not possible to pay the latter directly at the office of the Revenue Agency, nor to have the contract registered “in debt”, but it must be paid at the bank or at a post office before the appointment at the Revenue Agency, otherwise it will not be possible to register the contract.
Three F24 forms must be filled in, one of which must be delivered to the Revenue Agency, one is retained by the bank branch or post office where the payment is being made, the last one is kept for receipt.
Now that you know every angle of the preliminary contract for the sale of a property, all you have to do is move on to the facts and draw up your “compromise”.