Selling an apartment in a cohabitation: rights of unregistered partners, risks and legal disputes

The sale of housing in which an unregistered couple lives (the so-called civil marriage, or convivenza di fatto) is regulated by property rights. Italian law (Legge Cirinnà no. 76/2016) does not automatically extend the family law provisions that apply to formal marriages to such unions.

Purchase of Real Estate and Ownership Status

When purchasing a home by an unmarried couple, the size of the shares is determined by the contract: the property can be registered in equal shares (50/50) or proportional to the money contributed.

It is important to separate ownership rights and mortgage obligations. Paying mortgage payments does not automatically make a person the owner or increase their share without official registration. To protect their rights, partners can enter into a Cohabitation Agreement (Contratto di convivenza) through a notary or lawyer.

Special risks:

• Inheritance: Without an official will, a civil partner is not a legal heir.
• Sale between partners: The transfer of real estate between civil spouses requires mandatory notarization. A sale at a reduced price or without an actual transfer of money is considered a hidden gift (donazione indiretta). This creates problems for the buyers in future obtaining a mortgage and gives the seller's heirs the right to challenge the transaction in the future.

Rights of the non-owner partner

If the property is owned by only one of the partners:

• In the event of the owner's death: The surviving partner receives the right of temporary residence (diritto di abitazione) for 2 years (or up to 5 years, depending on the length of the relationship). If there are minor children or disabled children, this period is at least 3 years. The right is canceled upon remarriage or the creation of a new family.
• In case of separation: The non-owner partner is obliged to vacate the property within a reasonable time. However, if there are minor or incapacitated children in the family, the court may secure the right of residence in the house for the parent with whom the children remain.
• Rent: In the event of the death of the official tenant of the property, the surviving partner has the right to transfer the lease to his or her name.

Procedure for sale by co-owners (house in joint ownership)

If the house is registered in the names of both partners, the ordinary shared ownership regime (comunione ordinaria) applies. The sale of housing to third parties requires complete unanimity.

In a joint sale, the proceeds are distributed strictly according to the shares specified in the original deed of purchase (rogito). Before paying out the money, the following are deducted from the total amount:

1. The balance of the mortgage loan;
2. Ancillary expenses (agency commission, technical expertise);
3. Capital gains tax (plusvalenza), if the property is sold earlier than 5 years after purchase and was not the main place of residence.

What to do if one of the partners is against the sale?

No one can force the owner to sign an agreement with third parties, but the law does not allow a person to be kept in shared ownership against his will. The problem is solved in three stages:

1. Redemption of a share (Riscatto della quota): One of the partners buys out the share of the other at market value, re-registering the remainder of the mortgage in his own name (with the consent of the bank).
2. Civil mediation (Mediazione civile): Mandatory pre-trial stage of dispute resolution with the participation of lawyers.
3. Judicial division (Divisione giudiziale): If an agreement is not reached, the issue is decided by the court (Article 1111 of the Italian Civil Code). The judge may divide the house into two independent apartments (if the layout allows), transfer the property to one partner with an obligation to pay compensation to the other, or put the property up for forced public auction, dividing the proceeds.

Mortgage Balance and Repair Costs

Since a mortgage is a joint debt, the notary automatically pays off the loan balance from the funds received from the buyer upon sale. If the mortgage is drawn up 50/50, the bank will retain exactly half the debt from each partner, regardless of who actually made the monthly payments. The notary does not perform automatic offsets.

Previously completed repairs do not change the official ownership shares. However, a partner who has fully paid for capital works that increased the value of the house has the legal right to demand compensation for half of the documented expenses based on Article 2041 of the Italian Civil Code (unjust enrichment).

To ensure proper settlement during the sale, the parties can draw up an agreement with a notary on the asymmetrical distribution of income from the sale or sign a private agreement (scrittura privata) on mutual settlements in advance.