The transcription of the indivisibility lien and the form of the deed of purchase

Legislative Decree. 99/2004 states that “Land and its appurtenances, including buildings, constituting the single compendium, shall be considered indivisible units for ten years from the time of incorporation and during that period may not be subdivided as a result of transfers by cause of death or by deeds between living persons”

It is necessary to keep in mind that the aforementioned indivisibility bond must be expressly mentioned by the notary public in the deeds of incorporation of the compendium and transcribed in the public land records.

While, on the one hand, the legislature expressly contemplates the nullity of deeds between living persons and testamentary dispositions that have the effect of splitting the single estate, on the other hand, it makes no provision regarding the consequences of deeds made in the absence of transcription.

The doctrine and jurisprudence have often posed the question of whether the aforementioned transcription has the legal nature of constitutive publicity, without which, that is, the transaction does not produce effects even between the parties, or of news publicity, without which the legal relationship is, however, valid and enforceable against third parties.

Those who advocate the thesis of news disclosure base their convictions on the letter of the rule, which identifies the moment of the establishment of the unique compendium as the moment when the indivisibility bond arises, and this is regardless of its transcription. Therefore, according to this interpretation of the rule, even in cases where the transcription of the indivisibility bond is missing, the deed that tends to split the single compendium is void.

However, the prevailing doctrine, in the presence of unavailability liens, advocates the constitutive effect of the transcription of such liens. Furthermore, these authors, considering the serious sanction of nullity that the legislature attaches to the violation of the aforementioned indivisibility bond for inter vivos and mortis causa deeds, noting that the rule provides for the mandatory mention of the said bond and its transcription in the public real estate registers, highlighted the need to protect pre-eminently and maximally the principle of third party reliability and certainty of legal relations, emphasize that it is preferable to consider that the transcription of the said bond has constitutive effect.

Finally, it should be pointed out that, since this is a lien to be transcribed in the public real estate registers, it was at first thought that the deed of purchase could take the form of a public deed or a private deed with a notarized signature, although, as has been observed, the deed in question, given the tenor of the rule that speaks of a “notary notarypublic,” would seem to be able to take exclusively the form of a notarized public deed. Today, Leg. 101/2005 expressly requires the form of public notarial deed for the establishment of the single compendium concerning agricultural land and its appurtenances already owned by the party.

Finally, it is noted that, from the analysis of the regulations, it can be deduced that the lien must be transcribed against the person who constitutes the compendium and in favor of the region in whose territory the property (or real estate) subject to the lien is located.
Attorney Chiara Roncarolo

Attorney Maurizio Randazzo