Legislative Decree no. 149 of October 10, 2022, implementing Law no. 206 of November 26, 2021, with the aim of simplifying, speeding up and rationalizing the civil law process, has introduced relevant changes for Italian notaries. All changes will be in force as from June 30, 2023.
- Notarial competence for authorizations concerning voluntary jurisdiction affairs
According to Article 21, paragraph 1, of the abovementioned decree, “authorizations for the conclusion of public deeds and certified private contracts in which a minor, an interdict, an incapacitated person or a beneficiary of the support administration measure intervenes, or concerning hereditary properties, may be issued, upon the written request of the parties, personally or through a legal representative, by the notary appointed to draft the deed”.
From now on, such authorizations only need to be issued by a judge in cases concerning guardianship (known as a “Giudice Tutelare”). Before this change, notaries were only allowed to sign and deposit petitions for voluntary jurisdiction affairs.
According to the new amendments, as from June 2023 parties will be free to apply either to the “Giudice Tutelare” or to a notary for such authorizations.
The first element to be taken into consideration is the potential territoriality to be respected. Indeed, in the case of an application before the Giudice Tutelare, the competent authority is the one where the person in whose interest the authorization is required has his/her domicile or residence, whereas no condition of jurisdiction applies in the case of an authorization issued by a notary; the notary is only responsible for concluding the deed for which the authorization is issued.
The second element is the written application to the notary, which can be submitted by the parties personally or through a lawyer.
The notary may be assisted by advisers, and obtain information, without formalities, from a spouse or from third-degree and second-degree relatives of a minor or a person subject to a protective measure or, in the case of inherited properties, from the other people involved in the inheritance and creditors shown in any inventory that may be drawn up. If the authorization to sell concerns a bequest in nature, the legatee must be heard (Article 747, par. 4, Italian Code of Civil Procedure).
According to Article 21, paragraph 3, of said decree “where, as a result of the conclusion of the deed, a consideration is to be collected in the interest of the minor or of a person subject to a protective measure, the notary shall, in the deed of authorization, determine the necessary precautions for the reuse of that consideration”.
The authorizations shall take effect twenty days after the notifications and communications provided for in the previous paragraphs if no complaint is lodged. They may be amended or revoked at any time by the Giudice Tutelare, but the rights acquired in good faith by third parties by virtue of agreements prior to the amendment or revocation shall remain unaffected (Article 21, paragraph 4, Legislative Decree 149/2022). The latter provision implies that notaries may not grant provisional enforcement to any authorization that may be issued, nor amend or revoke it, unlike the powers recognized to judges.
The notary shall notify the registry of the court that would have been competent to issue the corresponding judicial authorization, and the public prosecutor at said court, of the authorization, also for the purposes of completing publication formalities. The notification should be sent by certified email – presumably, since this is not specified in the legislative provision – in order to attribute a certified date to the notification. The time limit for lodging an appeal starts from that date.
Authorizations to initiate, waive, settle or refer to arbitration, or for the continuation of a commercial enterprise remain the exclusive responsibility of the judicial authority.
Francesca FERRARI, Tassinari & Damascelli Studio Notarile, Bologna
