Mortgage registration is the registration of a mortgage in the public registers. In the context of real estate, this registration takes place at the Land Registry . But what does this mean exactly?
A mortgage is a real right of guarantee that gives the creditor the power to expropriate the goods that are the object of the guarantee in the event of non-payment of the debt. In other words, when a mortgage is taken out to purchase a property, the credit institution grants the loan and, as a safeguard, registers a mortgage on the property itself. This act of registration of the mortgage is known as a mortgage registration .
Here are some key points regarding mortgage registration:
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Guarantee for the creditor : The mortgage assures the bank or creditor that the money lent will be returned. If the borrower does not pay the mortgage installments, the lender can expropriate the property and proceed with a forced sale.
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Public Record : Once the mortgage is recorded in the records, it becomes public knowledge. This allows potential buyers to know that a mortgage exists on a property for sale.
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Role of the notary : The notary is essential for both the registration and cancellation of the mortgage. Italian regulations provide that the notary can draw up deeds that can be transcribed in the Real Estate Registers.
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Cancellation : At the end of the mortgage contract, the mortgage is cancelled by the notary. This marks the last step before having concluded the commitments towards the credit institution.
Remember that the registration of the mortgage amount also affects the notary fee, which is calculated on the value of the mortgage and not on the amount of the loan. In addition, the mortgage must be renewed after 20 years to maintain its effectiveness.
When does the registration of a tax mortgage occur?
The tax mortgage is applicable exclusively for debts exceeding 20,000 euros on any real estate property of the debtor, regardless of the ownership share. This excludes minor debts and those not previously communicated to the debtor by the Revenue Agency-Collection.
To determine the value of the debt, all roles assigned to the Revenue Agency-Collection must be considered, including non-fiscal ones. However, real estate expropriation is not permitted for debts less than 120,000 euros and cannot be carried out if the property is the debtor's only main residence.
The notification sent by the tax office must clarify the intention to proceed with the tax collection mortgage and offer the debtor a 30-day deadline to avoid the mortgage by paying off the debt.
When is a mortgage legitimate?
A mortgage is considered legitimate if the debt for unpaid and overdue tax bills (at least 60 days after notification) exceeds 20,000 euros . If the debtor pays a portion of the debt, reducing it below this threshold, he can avoid the tax mortgage. A debt of 15,000 euros , for example, does not entail the risk of foreclosure of the home.
Contrary to what one might think, a mortgage on a first home is not always illegal. The law prohibits a tax mortgage only if the property is the only one owned by the debtor and if it is used as a primary residence, provided that it is not classified in the cadastral categories A/8 and A/9.Of course, here is a revised version of the text:
Conditions of invalidity of the mortgage tax registration: under what circumstances is it inadmissible?The tax mortgage emerges as a particularly authoritarian instrument of the State. To mitigate the adverse impacts, the legislation has precisely defined the situations in which it is lawful to proceed with the registration of a mortgage and those in which such an act is considered invalid.
The mortgage tax registration is not valid if:
- The taxpayer's debt does not exceed 20,000 euros ;
- There was no notice of the mortgage, or the notice occurred less than 30 days before;
- The taxpayer has not received a preliminary payment notice, or the indicated debt has become time-barred;
- In the case of a jointly owned property, the amount of the mortgage cannot exceed the portion owned by the debtor;
- The mortgage is registered more than one year after notification of the payment notice or more than 180 days after notification of the payment notice;
- The amount of the mortgage is disproportionate to the debt that is intended to be recovered;
- The taxpayer obtained a payment extension or suspension of payment from the judge before the mortgage was registered.
Deadline for the prescription of the tax mortgage
The terms for the prescription of the mortgage tax registration are set at five years , as provided by Law 335/1995. This provision has been further confirmed by recent rulings of the Court of Cassation, including ruling no. 1455/2013 of 8 May 2013, which ruled in favour of a taxpayer in a case against INPS. The Cosenza court, examining the case, underlined, establishing a significant precedent, that it is not possible to carry out the mortgage tax registration once five years have passed from the notification of the tax bill.