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BEING THE OWNER OF PROPERTIES OF HISTORIC AND ARTISTIC INTEREST

How are these assets identified? What is the "constraint regime" and what entails for the private owner? Everything you need to consider in ordinary administration and before buying or selling.

By Avv. Simone Ceresoli - 3/11/2020

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Introduction

Any person who has a taste for antiquity will surely have, more than once, lost his breath in front of a building: caryatids and telamons, friezes, high-reliefs, frescoes ...

In all likelihood it will have been a building of historical and artistic interest.

It is useful to know that properties "of historic and artistic interest", or "of cultural interest", are subject to (rather, protected by) absolutely peculiar rules of which, in this brief article, we are going to discover the main features.


 

   1. History

The original Italian legal discipline of buildings of cultural interest dates back to the early twentieth Century (law of 20 June 1909, n. 364).

Fundamentally, it aimed at granting its good conservation towards the community, both for public security and historical-cultural reasons.

This purpose was pursued by attributing special prerogatives to the State and converse obligations on the private owner. Particularly significant, in this sense, is art. 5 L. n. 364/1909 cit. above: "if assets [of historical and artistic interest] deteriorate or present danger of deterioration and the owner fails to carry out the necessary restorations within a period assigned to him by the Ministry of Public Education, they may be expropriated".

Until today, various laws have been alternated (see also the law of 1 June 1939, n.1089) but the underlying spirit of the Legislator has remained, for sure, unchanged.

   2. Reference legislation

The in-force legal source on properties of historical and artistic interest is the Legislative Decree 22 January 2004, n. 42 (so-called Code of Cultural Heritage).
 

   3. How are properties of cultural interest identified?

How can you distinguish a property "of cultural interest" from a just "any" property?

Not just through the outer appearance. 

A property neither is born "of cultural interest" nor gains this qualification automatically. In fact, it will not suffice the simple belonging to a specific cadastral categories (eg A/9 - Castles, palaces of outstanding artistic or historical merits; A/11- Houses and accommodation typical of the places). 

The legal qualification, indeed, is acquired after a scrupulous control of merit carried out in concrete, asset by asset, by the competent Authorities through precise steps.

This procedure is initiated by the superintendency (i.e. a peripheral body of the Ministry of Cultural Heritage) and is entirely governed by law.

In the end, if the merit control is completed successfully, and so the individual asset is reputed as being "of cultural interest", the Ministry issues a provision in which it is officially recognized that the asset is worthy of protection. The provision is then transcribed in the public registers. From this moment the property assumes the qualification "of cultural interest" for all legal purposes and, as a consequence, begins to be assisted by the protection regime.
 

4. The constraint regime

The qualification "of cultural interest" essentially involves the application of a set of rules called "constraint regime" or "binding regime" (which is why these assets are also called "bound properties").

These rules operate erga omnes, and so not only towards the owner of the real estate at the moment of the constitution of the bond but also towards all the future owners of that asset, ideally up to infinity.

The binging regime is particularly burdensome for the private, both from a legal and economical point of view, and its observance is supervised directly by the superintendence.

It contains a series of substantial constraints consisting, as we will see briefly below, in obligations on the conservation of the asset, on its use and on the transfer of the asset itself.

    a) Conservation

The execution of interventions on real estate assets of cultural interest is subject to an authorization from the superintendency, however a simplified procedure applies to residential buildings.

Private owners are required to guarantee the conservation of the property through interventions of:

  • prevention, to limit the risk situations connected to the asset in its context;

  • maintenance, to maintain the asset in its integrity, functional efficiency and identity both as a whole and in its parts;

  • restoration, aimed at the recovery and protection of the property as well as the transmission of its cultural values.

The voluntary conservation interventions, that are carried out voluntarily by the private, are subject to an authorization made directly on the project presented by the private to the superintendent.

The conservation interventions imposed, i.e. interventions that must be carried out independently of the will of the private individual, result from a technical report issued by the superintendency which highlights their necessity. The report is sent to the owner who can also submit his observations. If the owner fails to comply, the superintendency proceeds with direct execution.

The charges for the conservation interventions imposed are fully borne by the private individual. However, if the interventions are particularly important or concern assets in public use or enjoyment, the Ministry can contribute to the related expenditure.

    b) Destination of use

Cultural assets may not be destroyed, damaged or used for uses that are incompatible with their historical or artistic character or such as to prejudice their conservation.

    c) Pre-emption on sales

If the owner intends to sell the property to another private person, the State has the right to be preferred to the latter in the purchase.

Immediately after the conclusion of the contract, a transfer report must be sent to the Ministry containing all the information required by law, including the agreed price.

Within the 60 days, the State can exercise the right of pre-emption and thus prevail over the aspiring buyer and purchase the property at the same price fixed by the parties.

If the State does not exercise the pre-emption then the contract will be definitively effective against the private buyer.
 

5. Tax benefits

The heavy constraint regime finds a balancing in some fiscal advantages, available in the face of compliance with specific provisions. 

Among the various tax benefits, we remember: (i) 50% reduction of the IMU tax base (without prejudice to the "first home" exemption), (ii) exclusion from the inheritance assets for the purposes of inheritance taxes, and (iii) application of the gift tax in fixed measure.

Tax benefits do not extend to those properties subject to "indirect constraint", that is, a constraint that is not directly justified by an intrinsic cultural interest of the property itself, but only indirectly, as it is just instrumental in preserving another bound property located nearby.

Like direct constraints, indirect constraints also result from real estate public registers and operate erga omnes.
 

Conclusions

Being the owner of a property of cultural interest means taking on a special regime justified by the need to maintain the property well preserved over time in the interest of the whole community.

This regime is particularly burdensome both on a legal and economical point of view. Therefore, it is essential to adequately know its provisions both, for example, during ordinary interventions and in occasion of a purchase or a sale of the asset.

On the other side, this onerous discipline is balanced by specific tax benefits granted in favor of the private owner. 

 

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