Italian regulation for real estate agencies assistance
In Italy the activity of a Real Estate Agent is ruled basically by two articles of the Italian Civil Code.
1. Art 1754 Italian Civil Code (Real Estate Agent role)
“A mediator is one who brings together two or more parties for the purpose of concluding a business deal, without being bound to any of them by a relationship of collaboration, dependence or representation”.
2. Art. 1755 Italian Civil Code (Real Estate Agent fees)
“The mediator is entitled to commission from each of the parties, if the deal is concluded as a result of his intervention. The amount of the commission and the proportion in which it shall be borne by each party, in the absence of agreement, professional rates or custom, shall be determined by the court in equity”
- A bargain is identified with any economic transaction of patrimonial content that is the result of the agreement of two or more parties, resulting in the arising of obligations. Therefore, a preliminary contract, for example, is also such (1351 Civil Code).
- The parties put in contact by the mediator are free to conclude the stipulation or not. If, however, they conclude, he is entitled to compensation if his intervention was relevant, and this concept must be understood in a broad sense. In fact, it is not necessary that the mediator’s work affect the conclusion of the contract itself, but it is sufficient that it be part of that causal process, even if only at an earlier time. However, indirect mediation is not relevant, for example, because the mediator notifies others of the deal and it is he who puts the parties in communication.
- The amount of commission is determined on the volume of the deal concluded. However, the parties may agree that it is payable even if the deal has not been concluded, thus for prodromal activity only. Pursuant to the provision, moreover, it shall be borne by both parties.
- Article 6 of Law No. 39 of February 3, 1989, provides: “1. Only those who are registered on the rolls shall be entitled to the commission. 2. The amount of the commission and the proportion in which it is to be borne by each of the parties, in the absence of an agreement, shall be determined by the chamber of commerce councils, after hearing the opinion of the provincial commission referred to in Article 7 and taking into account local customs.”
Therefore, the right to commission accrues when the main deal is concluded.
This is the rule. Which must be further specified in the sense that said affair (in regard to which mediation functions as a means to an end) is to be regarded as having entered the legal field with the prescribed requirements of substance and form; so that each of the contracting parties is entitled to act in order to obtain its execution.
On this point there was agreement in the jurisprudence formed in the force of the earlier provisions; nor can there be any doubt about the perfect consistency with the present ones as well. In fact, even under the empire of the repealed Commercial Code, the word “bargain” was now peacefully stretched in the sense of contract. Hence, to conclude the bargain could not but mean to conclude (in the technical sense) the contract. Now, the fact that in the provisions the term ” bargain ” is used in Article 1755 concerning the mediator’s right to compensation and the term ” contract ” in other articles (e.g., in Article 1757), cannot suggest that, with the two expressions, it was intended to allude to different legal situations. This would imply that, in addition to the formal inconsistency, there would be a much more serious one of a substantive nature, which nothing authorizes one to consider in the current provisions. All the more so if one takes into account the agreement, which already exists in doctrine and jurisprudence.
The conclusion of the contract, in the sense just specified, is therefore, also for Article 1755, the precondition for the mediator’s right to commission to accrue. This prerequisite, however, is not sufficient. The law also requires another: that the conclusion of the contract occurred as a result of the mediator’s intervention.
Thus, a gap found in the former Commercial Code has been filled by express provision. Moreover, the doctrine and case law of the Supreme Court had already agreed on the need for the aforementioned requirement, specifying its legal scope in the sense that it must refer to a causal relationship between the work performed by the mediator and the contract. It was, in fact, pointed out that, between the mediator’s activity and the legal transaction, subsequently stipulated, there had to be a necessary connection; so that the bond was, at least in its essential content, no other than the useful result of the activity itself, when, of course, the parties, in relation to the autonomy of their will, had determined to contract.
Requirements to work as a Real estate Agent in Italy
Personal and moral requirements to become a real estate agent
The personal requirements to become a real estate agent are as follows:
- be an Italian or European citizen or otherwise have residence in Italy
- have civil rights
- reside in the province of the Chamber of Commerce in which you are applying for registration
- it is mandatory to be in possession of a high school diploma in any field of study
- The moral requirements to become a real estate agent are as follows:
- not to be disqualified, incapacitated, bankrupt, convicted of crimes against the P.A, the public economy, industry and commerce, or of the crimes of voluntary manslaughter, theft, robbery, extortion, fraud, embezzlement, receiving stolen goods, and any other crime for which the law imposes a penalty of imprisonment of not less than two years minimum and five years maximum;
- not having been subject to anti-mafia regulations;
- not being subjected to ancillary administrative sanctions under Article 5 of Law 507/1999.
- The existence or non-existence of any criminal record is ascertained by means of a criminal record certificate that the Chambers of Commerce request from the competent public prosecutor’s offices. To date, the practice of self-certification allows the aspirant to register by declaring that he or she meets the moral requirements, without specific formalities, with the Chambers of Commerce remaining in charge of the subsequent checks.
To the above requirements, we point out the indications contained in the Prime Minister’s Decree of October 18, 2020, which also affect the real estate agent profession.
PROFESSIONAL REQUIREMENTS TO BECOME A REAL ESTATE AGENT
To become a real estate agent, it is necessary to have attended a preparatory training course and to have passed a chamber exam related to the chosen branch of brokerage. The terms of the examinations are provided for and indicated in DM. 300 of 21/02/1990, which provided for two written tests and an oral test.
The written tests to become a real estate agent cover legal subjects and technical subjects, and to these is added the oral test. This is for registration in the section of real estate agents and agents for hire in real estate, while a single written test and an oral test are needed for registration in the section of commodity agents and for agents in various services. As an alternative to the first option, Law 57/2001 provides for a practice period of a minimum of 12 months with the obligation to attend a specific professional course.
This opportunity, however, is not feasible at the moment in the absence of an implementing decree to the following provision from the relevant Ministry regarding the modalities or characteristics of the training qualification, examination and keeping of the register of practitioners. And before Law 57/2001 there was also a third opportunity, that is, to obtain registration on the Roll without taking any examination , it was enough to have an accountant’s diploma or a degree in economic-legal subjects or equivalent.
Today this third hypothesis is no longer possible, just as it is no longer possible to replace the preparatory course to become a real estate agent with a period of at least two years (out of the last 5) in a brokerage firm. Demonstration of the professional requirements and the absence of any causes preventing registration is the responsibility of the applicant and can be fulfilled by self-certification that is included in the application.
Real estate agent license
The real estate agent course aimed at acquiring the license involves passing an examination consisting of written and oral tests.
In particular, the real estate agent must demonstrate that he or she has fundamental notions to properly carry out the profession:
- Knowledge of civil, tax and urban planning law;
- Knowledge of tax, financing and mortgage matters.
- Notions of marketing and negotiation
In addition, certain entry requirements are necessary such as:
- European citizenship or possession of a residence permit;
- Having reached the age of majority;
- Have no criminal record;
- A high school diploma.
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The contents of this page should not be taken as an authoritative statement of Italian law and practice. Neither the author nor the publisher are responsible for the results of actions taken on the basis of information contained in this summary, nor for any errors or omissions. This text is not intended to render legal, accounting or tax advice. Readers are encouraged to seek professional advice concerning specific matters before making any decision.