As a result of numerous contacts received after the publication of this video, from fellow real estate agents, I wanted to summarize in this post the changes and obligations introduced by the new 2017 AML regulations as they relate to real estate agents.
Obligations for real estate agents new anti-money laundering regulations 2017
Let's start with the normative references, namely Legislative Decree No. 90/2017 which introduced amendments implementing EU Directive 2015/849 ( always punctual we in Italy eh?) aimed at updating the previous Legislative Decree No. 231 of 21/11/2007.
Until July 4, 2017, in fact, it was MANDATORY to keep the famous "anti-money laundering register," or a register in which the master data of all parties involved in transactions worth more than €15,000 had to be reported . Fortunately, this requirement has been abolished by the new legislation, reducing the bureaucratic burden that real estate agents have to bear during their operations.
But let's see what obligations are contained in Legislative Decree 90/2017:
- Adequate customer verification
- Document storage
- Suspicious transaction reporting
- Abstention
How is customer due diligence done? ( art 17 et seq. DLGS 90/2017)
When we talk about customer due diligence, we mean the identification of the beneficial owner of the transaction. A beneficial owner is defined as:
The natural person or persons, other than the client, in whose interest or interests the continuing relationship is ultimately established, the professional service is rendered, or the transaction is performed. Definition taken from Art.20
In the case of corporations, the beneficial owner, if it is not clearly indicated is the one who holds more than 25% of the share capital ( they can be more than one ) or in the absence of such a share, it is the person ( or persons ) who have the powers of administration and management of the company. In the event that in addition to the beneficial owner, there are other shareholders who hold a share of at least 25%, due diligence should be carried out for them as well.
When should the due diligence be done?
1) When an ongoing relationship is established or in the process of commissioning the performance of a professional service ( this case study also includes the commissioning of a lease under 15,000 € if the relationship proceeds for + consecutive contracts, so we are not talking about the actual conclusion of the deal, but even the mere commissioning or the proposal of purchase/lease is sufficient.
2) When performing occasional services ( buying and selling, leasing, consulting ) involving the movement of an amount of 15,000 € or more. In leases we do not refer to the annual fee, but to the fee of the entire contract ( so 4 years in 4+4 or the 3 years in 3+2) this means that the correct identification should be made in the vast majority of cases.
3) When there is a suspicion that the transaction may be traceable to an action aimed at financing terrorism, money laundering or there are doubts about the veracity of the data obtained for identification purposes ( in this case there are no limits below which it is not mandatory to make the report ALWAYS MUST BE MADE!!)
At what time should the identification be made?
Before the establishment of the relationship
Before appointment (in case of sale or lease)
Before the proposal is signed (in case of sale or lease)
Document storage
What do I have to do materially for AML purposes?
While the previous legislation required registration (in the AML registry) of those with whom transactions were made, this requirement is no longer there.
As Article 31 states.
Obligated persons shall retain documents, data and information useful to prevent, detect or ascertain any money laundering or terrorist financing activities and to enable the performance of the analyses carried out, within the scope of their respective attributions, by the FIU or other competent Authority
To be in compliance with the current regulations, it will be sufficient to keep the documentation used to identify the client (doc. id visura etc etc ) in the file you are conducting.
Other documentary requirements are not there, if for your convenience you want to make a customer assessment in writing, by means of a special form with questions to determine the "risk" of the transaction, it remains at your sole discretion to file that document as well, such as collecting a signature on a statement from the counterparty ascertaining the actual holder of interest, thus relieving you of any responsibility.
Download the risk calculation sheet here --> 
Download the questionnaire for due diligence here -->
Suspicious transaction reporting
How should reporting be done according to anti-money laundering regulations?
Article 35 -following- of this decree, tells us how to make a suspicious transaction report to the public authority.
If there is a suspicion that the transaction or the funds to carry it out are illicit, the reporting party must promptly report the fact to the public authority, namely the FIU (Financial Investigation Bureau)
Below you can find the link for reporting for anti-money laundering purposes
http://uif.bancaditalia.it/adempimenti-operatori/segnalazioni-sos/
It is worth mentioning that the report is ANONYMOUS and obviously the parties to the suspicious transaction should not be notified. While previously there was an obligation to stop the transaction until the public authority confirms the goodness of the transaction, today this procedure has been reversed, that is: the operator following the report proceeds with the transaction until the control body intervenes to stop and ascertain the crime.
Obligation to abstain new anti-money laundering regulations 2017:
Article 42 stipulates the obligation to refrain from entering into the transaction if there is an objective impossibility to carry out customer due diligence. It is possible that one may find oneself applying this article when one of the counterparties is a trust company, trusts, corporations, or based in high-risk third countries.
In this video you will find confirmation of what Fimaa's legal advisor Lawyer Mammani wrote.
