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Transfer of Surface Rights

Posted: 12 January 2018

Instrument

Pursuant to Art. 952 and following of the Italian Civil Code, the surface right is (i) the right to build on third party’s property and, consequently, to purchase the property of the building built; (ii) or the right to sell the existing property of the building, separately from the property of the land.

In case of temporary transfer, when the period expires, the surface right expires too and, under the principle of accession, the proprietor of the land acquires, moreover, the property of the building.

 

Regulations

Art. 952 “Establishment of Surface Rights” of Italian Civil Code; Art. 953 “Establishment of Temporary Transfer of Surface Rights” of Italian Civil Code; Art. 954 “Expiration of Surface Rights” of Italian Civil Code

Procedure

Publication of a Call for Tender

The start of the procedure to transfer the surface rights of a public asset is established by the publication of a call for public tenders on the institutional website of the entity that owns the property, aimed at choosing the subject to which the surface rights of the asset shall be transferred to. The call specifies the duration of the transfer of surface rights to the investor.
Once the aforementioned transfer period expires (max duration 99 years), the surface right expires too and the public entity shall automatically become owner of the buildings constructed or renovated by the transferee and its assignee.

Call for Tender’s Deadline

If not otherwise expressed in the call, the tender is valid for 180 days from the expiry date for the submission of the tender. This period is meant to safeguard the competitor, preventing any eventual lengthiness of the procedure to become detrimental. In case no contract has been signed after the expiry of such period, the competitor can waive his tender or confirm it, either tacitly (e.g. by signing the contract) or expressly, also following a request from the Contracting Authority. Once the tender is confirmed, the effectiveness of any eventual guarantee issued during the participation to the call shall be extended.

Identification of Best Tender

The call is usually won by the subject who offers the most economically advantageous tender, identified on the basis of the best value for money.

Exclusion Criteria and Proof of Compliance

With reference to the general requirements laid down in the current legislation for participating in public tenders, notwithstanding the requirement to verify any eventual provision of each specific call, it is necessary to specify that:

  • Usually, by moral requirements, reference is made to those provided for in Art. 80, D.L. no.50 of 18/04/2016 “Code of Public Contracts”; the competitor shall prove to hold the aforementioned requirements when taking part in the call, to be verified by the Contracting Authority once the tender has been submitted. More specifically, public administrations may request the following documents: a certificate issued by the Criminal Records Office or, if unavailable, an equivalent document issued by the judicial or administrative authority of the Member State or of the Country of origin in which the envisaged requirements are met; appropriate certification issued by the competent fiscal authority and, as far as social security contributions are concerned, the certificate of social security compliance automatically acquired by the public administration from social security institutions pursuant to current legislation or, if unavailable, an equivalent certificate issued by competent authorities of other States.
  • Economic and financial standing of the economic operator, declared upon taking part in the call, can be proved through one or more of the following: appropriate bank declarations or, if any, evidence of relevant professional risk’s indemnity insurance; the presentation of balance sheets or extracts from balance sheets, where publication of the balance sheet is required under the law of the country in which the economic operator is established; a statement of the undertaking’s overall turnover and, if any, of turnover in the area covered by the contract for a maximum of the last three financial years available, depending on the date on which the undertaking was set up or the economic operator started trading, insofar as the information of these turnovers is available. If, for any valid reason, the economic operator is unable to provide the references requested by the contracting authority, he may prove his economic and financial standing by any other document which the contracting authority considers appropriate.

 

Timing

The procedure for the choice of the transferee shall take 30-45 days.

 

Costs

The private investor shall bear all costs related to technical-administrative verification activities to be performed on the property and to the preparation of the tender (e.g. technical and legal consultancies, inspections of the site, etc.).

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