The Italian justice system does not have a unilateral position on the registration of title of real property to a trust or trustee. The prevailing approach has been to register in the name of the trustee, and this was affirmed again recently by the Superior Civil Court of Italy, in January 2022.
There have been several decisions in Italian courts on this issue, originating from requests made to the District Registrars that maintain records in the Land and Building Register (Conservatoria dei Registri Immobiliari)[1].
In the past, some Courts ruled that a trust has very little legal individuality (compared to other legal organizations, like associations, companies, etc.), and consequently cannot hold a property in their name (Court of Appeals of Trieste, 2014), but in the name of the trustee.
On the contrary, other Courts have ruled the trust has enough legal individuality to hold property[2], and therefore a house can be registered in the name of the trust (District Court of Turin and Court of Appeals of Venice, 2014).
The disparity between different legal arguments has been resolved by the Superior Civil Court of Italy, that has ruled in favor of the first approach. It has done this on the grounds that a trust has no legal personality and therefore the property must be registered in the name of its trustee (decision nr. 1866 of 2022; nr. 3986 of 2021; decision nr. 7003 of 2020).
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[1] In Italy, transfer of real property must be registered with the Conservatoria dei Registri Immobiliari (Land and Building Registry). This process is called “publication” and is aimed to make the transfer known to whoever will inquire the Registry. Art. 2643 of the Italian Civil Code lists contract that must be registered. Registration must be requested when purchasing real property, when filing a case that involves the property, or court sentences related to real property, new easement rights, etc. Failing to register has severe consequences: for instance, does not guarantee the first purchaser from the purchase made by a second buyer from the same seller if this second transfer has been property registered.
[2] Trust register with the Italian fiscal authority and get a tax code. Judge that are favorable to this approach indicate that also Condos and ESG funds have limited legal personality, but can own property. They also point out that this is a practical approach, that avoids to register the transfer of title every time that the trustee changes, for whatsoever reasons.
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