Acquisition Structures
Commercial property acquisitions in Italy can take different legal forms. In an asset deal the property is acquired directly; in a share deal the shares in the property-holding company are taken over. The establishment of a special purpose vehicle (SPV) is also common. The choice of structure has a decisive influence on the contract arrangements, the allocation of liability and the tax burden.
Each structure requires careful prior analysis:
- Asset deal: direct acquisition of the property; title passes by notarial deed (rogito); liability for latent defects and planning law issues rests on the seller; registration taxes (imposta di registro or IVA) apply based on the purchase price
- Share deal: acquisition of the shares in the company holding the property; the company's full liability history is inherited; beneficial from a tax perspective in many cases, as the company's book values and carried forward losses transfer; due diligence must extend to the full corporate history
- SPV structure: a new special purpose vehicle is incorporated or an existing shell is used to hold the asset; clear segregation of liability; commonly used for larger investments or portfolio acquisitions; requires careful drafting of shareholders' agreements and exit provisions
The choice of structure also affects financing: Italian banks and international lenders will typically require specific security arrangements (ipoteca, pledge of shares, step-in rights) tailored to the structure chosen. I assist clients in coordinating legal structuring with the requirements of their financing institutions.
Lease & Tenancy
For long-term use and profitability, sound contractual foundations are decisive. I draft and review commercial lease agreements for retail, office, storage and production premises, as well as lease and management agreements for hotel, hospitality and tourism facilities. Operating and management contracts also fall within the scope of my advisory work.
Key aspects of commercial leases in Italy include:
- Statutory framework: commercial leases are governed by Law 392/1978, which sets mandatory minimum terms (generally 6+6 years for commercial use; 9+9 years for hotel and tourist activities) and limits the parties' freedom to derogate
- Rent and indexation: rent may be indexed to the ISTAT cost-of-living index, but only within the limits set by law; rent review mechanisms must be precisely drafted to be enforceable
- Tenant's goodwill indemnity (indennità di avviamento): upon termination of a commercial lease, the tenant may be entitled to a statutory goodwill indemnity equivalent to 18 months' rent (36 months for hotels and tourist facilities); this risk must be factored into the investment analysis
- Subletting and assignment: restrictions on subletting and assignment of the lease must be agreed expressly; in the absence of contractual restriction, Italian law permits assignment with notice
- Fit-out and reinstatement: obligations regarding alterations, fit-out works and reinstatement at the end of the lease must be clearly allocated to avoid disputes on exit
Planning & Permits
Many commercial investment projects require structural alterations or new construction. Early examination of planning and building regulations is essential. Depending on the project, either a building permit (permesso di costruire) or a declaratory notice (SCIA, CILA) is required. Contracts with architects, engineers and contractors must clearly regulate the construction programme and liability.
The Italian planning permission framework distinguishes between:
- Permesso di costruire: required for new buildings, major structural interventions and changes of use involving urban planning implications; granted by the municipality and subject to urban planning conformity; applicable taxes are calculated on the basis of construction costs
- SCIA (Segnalazione Certificata di Inizio Attività): a certified commencement notice for medium-level interventions; work may start upon filing; the municipality carries out checks ex post; incorrect filings expose the developer to stop-work orders and fines
- CILA (Comunicazione di Inizio Lavori Asseverata): for minor internal works that do not affect load-bearing structure; an asseverated notice filed before commencement
For projects in protected zones (landscape protection, heritage areas, seismic zones), additional permits from the relevant authorities (Soprintendenza, regional environmental authorities) are required prior to any building permit. Failure to obtain these renders the building permit void.
Contracts with construction professionals and contractors require particular attention to: milestone-based payment schedules, retention mechanisms, defect notification periods aligned with Italian law (Art. 1667 c.c.), insurance requirements and dispute resolution clauses specifying Italian jurisdiction and applicable law.
Dispute Prevention
In the event of disputes – such as construction delays, warranty claims, breaches of contract or regulatory orders – I assist clients both in out-of-court settlement and in proceedings before Italian courts and arbitration tribunals.
Effective dispute prevention begins at the contract drafting stage:
- Clear allocation of risk: building defects, planning law non-compliance and environmental contamination must be allocated by precise warranty, indemnity and conditions precedent clauses – the Italian default rules are often unfavourable to the buyer
- Escrow and retention mechanics: withholding part of the purchase price pending satisfaction of conditions (e.g. planning regularisation, asbestos removal) is a common and effective risk mitigation tool
- Dispute resolution clauses: arbitration (including ICC, Milan Chamber of Arbitration) is frequently more effective than Italian state court litigation for international commercial disputes; the choice of seat, language and governing law must be made deliberately
- Injunctive relief: Italian law permits urgent interim measures (provvedimenti d'urgenza, Art. 700 c.p.c.) to prevent imminent and irreparable harm; timely legal action is essential to preserve these remedies
- Mediation: for certain categories of dispute (including lease disputes), mediation is a mandatory procedural step before court proceedings may be commenced; I assist clients in navigating and utilising this process efficiently