Definition and validity of the deed of sale
Building discrepancies refer to irregularities or violations of building regulations during the construction of a building. These discrepancies can have a negative impact on the marketability of the property as they can affect the safety, quality and value of the building.
For example, structural differences can cause stability problems in the building and pose a risk to the safety of residents or occupants. Differences in the layout of the rooms or the surface of the building may affect the functionality of the building and thus the quality of life of the occupants. In addition, building discrepancies can affect the value of the property, as a property that is inconsistent with building regulations may have difficulty obtaining finance or insurance, and may be subject to depreciation or discounts on the sale price.In summary, building differences can have a significant impact on the marketability of properties and their ability to attract buyers or tenants.
It is therefore important for property owners and investors to pay attention to building regulations and ensure that properties comply with applicable laws and regulations.
Building discrepancies can lead to the nullity of the act of sale of the property, especially if they are significant differences that affect the compliance of the property with building regulations. In such a case, the deed of sale may be cancelled, and the buyer may require reimbursement of the purchase price, in addition to any damages.
With the change made by D.L. 76/2020, through the introduction of the new art. 34-bis of the TEU, it was intended to safeguard the public interest in the rapid circulation of goods, allowing the recovery and regeneration of buildings that have purely formal discrepancies with the authorized design. In fact, the hypotheses of tolerance referred to in paragraph 2 of art. 34-bis TEU concern the frequent cases of non-conformity from the building title that do not violate any planning or legal regulations.Therefore, in the event of irregularities other than the absence of the title or the total discrepancy, the goods are still marketable (regardless of whether or not the request for amnesty has been submitted) and the contract of sale is valid, but the seller is not exempt from liability.
Finally, paragraph 3 of art. 34-bis TEU also appears to be of particular importance in that it makes clear that the constructive or executive differences described in the preceding paragraphs do not constitute building abuse. The same must be the subject of a declaration by a technician to prove the legitimate status of the property, with a view to a new building intervention, or a device act of the property itself (e.g. alienation, donation, etc.).
In any case, it is important that buyers inform themselves about the compliance of the property with building regulations before proceeding with the purchase, to avoid running into problems later. Buyers can request the seller to provide the necessary documentation to verify the compliance of the property with building regulations, such as permission to build, certificate of eligibility or declaration of conformity.
According to the most recent case-law, the deed of sale is valid if it contains the correct statement of the securities justifying the construction or subsequent modification of the property in question, even if the building does not comply with the building permits.
In particular, the Court of Cassation ruled in its judgment of the United Chambers No. 8230 of 2019 (recently confirmed by the judgment of Cass. Sez II, No. 30425 of 17 October 2022) that the nullity provided for by Article 46 of the TEU and by Article 40, paragraph 2 of Law No. 47 of 1985 must be considered as nullity “textual” (ie provided for by specific rules of law and then attributable to art. 1418, paragraph 3, c.c).
Consequently, the deed of transfer of rights in rem relating to abusive buildings is valid only if a truthful statement is provided concerning the existence of the entitlements actually relating to the property bought, regardless of the conformity or non-conformity of the construction with the titles themselves.On the other hand, the nullity of the deed of sale is peaceful where the building works have been carried out in the absence of permission to build, having regard in this case to the impossibility of making a truthful statement about the existence of the title actually referring to the property bought.
The seller of the property is responsible for any building discrepancies in the property sold, unless the contract of sale provides otherwise. In general, the seller is obliged to provide complete and truthful information about the property, including any building discrepancies present.
If the seller does not provide complete and truthful information about the property, for example by hiding building differences or providing incorrect information, he may be liable for any damage suffered by the buyer. In this case, the buyer may request a refund of the purchase price or claim compensation for the damage suffered.
In addition, if the seller was aware of the building discrepancies in the property and did not report them to the buyer, he may be held responsible for any problems that may arise from such discrepancies, such as the nullity of the deed of sale.
In summary, the seller of a property is responsible for building differences in the property he sells and has the obligation to provide complete and truthful information about the property, including any building differences present. If the seller does not comply with these obligations, he can be held responsible for any damage suffered by the buyer.
Liability of the notary
The notary is required to carry out all the necessary checks to verify the compliance of the property with the town planning regulations in force at the time of the notary act. However, the responsibility for the urban differences in the property is usually the seller and not the notary.
This means that if the notary carries out all the necessary checks to verify the compliance of the property with the town planning regulations in force at the time of the notary deed and does not detect any discrepancies, is not responsible for any discrepancies that may subsequently be discovered.
However, if the notary does not carry out the necessary checks to verify the compliance of the property with the town planning regulations in force at the time of the notary deed, or if he provides incorrect or incomplete information to the buyer about the property, could be considered responsible for any damages suffered by the buyer due to the urban differences present in the property.
In summary, the notary is required to carry out all the necessary checks to verify the compliance of the property with the town planning regulations in force at the time of the notary deed, but the responsibility for the differences in urban planning in the property is usually the seller.
For example, failure to indicate habitability on the deed of sale may have negative consequences for the buyer, as habitability is a necessary condition for being able to legally live in a dwelling.
Generally, habitability is issued by the competent authority after verifying that the property complies with the rules of safety and hygiene required by law. If the dwelling is not habitable, the purchaser may be in the situation of not being able to live legally in such a building, with the consequent risk of administrative penalties.
If the seller or notary fails to indicate habitability on the deed of sale, this could be considered a violation of the provisions of the Civil Code on information to the buyer. In this case, the buyer may claim compensation for the damage suffered, or the nullity of the deed of sale.
In any case, it is important that the buyer always checks the habitability of the property before proceeding with the purchase, asking the seller for the necessary documentation to prove that the property complies with the rules of safety and hygiene required by law.
Actions for damages
Damage compensation for a non-marketable property depends on the specific circumstances of the case. In general, if the property is not marketable due to non-conformities or other irregularities, the seller may be held liable and the buyer may claim compensation for damages suffered.
The damage suffered by the buyer could be the difference between the value that the property would have if it were marketable and the actual value of the property in question. This value could be determined by an experienced real estate evaluator, who will consider the location, status and characteristics of the property, as well as the local real estate market.
Damages may also include costs incurred by the purchaser in trying to remedy non-conformities or attempting to make the property marketable, such as legal fees or repairs.
One of the actions available to the buyer is the one called aliud pro alio. In the real estate sale this action is governed by Article 1490 of the Italian Civil Code, which provides that the seller is responsible for the characteristics and qualities of the object sold, even if he has not expressly guaranteed them, unless the purchaser was aware of the discrepancies or they were easily recognisable.
The aliud pro alio action in the real estate sale occurs when the seller sells a property as if it had certain characteristics or qualities, but in reality the property has other characteristics or qualities than those indicated. In this case, the buyer may take legal action against the seller to obtain compensation for the damage suffered.
Damages could include the difference in price between the property with the actual characteristics and the one sold by the seller, as well as the costs incurred by the buyer to try to remedy the situation, such as legal fees or repairs.It is important for the buyer to seek advice from a real estate lawyer in order to assess the legal options available and determine the best strategy for obtaining compensation for damage suffered as a result of the purchase of a non-marketable property.