In preparing to sell the ownership rights of Italian real estate property the seller must carry out a thorough initial examination of the layout and planning and building permits. This is strongly recommended at the earliest possible stage, even before a mandate is given to an Estate Agent to market the property, or before negotiations begin with a prospective new owner, and without doubt before the signing of a preliminary contract. This advice applies equally to owners intending to gift the property to family members.
The property owner should be aware that they have a fundamental legal obligation towards the potential buyer or donee. The internal plans of the property (planimetrie catastale) and the registation details (dati catastali) filed with the Property Tax Registry (Catasto Fabbricati) must correspond exactly to the current layout of the property, and to any drawings filed with historical planning applications to the local Comune.
The relevant Italian law
This rule is set out in article 1-bis of the Italian Law no. 122/2010 (Legge n. 122 del 30 luglio 2010). As this rule has only been in force for just over 10 years, its requirements pose a potential obstacle to the sale of any illegal properties or unauthorised building, originally purchased between 1967 and 2010. This rule will not apply however, if the seller or donor is able to declare that the property was built prior to 1st September 1967, subject to there being no later modifications which would have required planning permission.
If there are discrepancies between the historic planning authorisations, the property plans and the actual layout, the buyer may apply to the civil court for an order declaring that the contract for sale of the property (atto di compravendita) is null and void, and for payment of damages for their loss. Likewise the contract will be declared null and void if the sale contract fails to contain this obligatory declaration of the seller.
The seller is liable to the buyer even if the difformities between the plans and the layout were not their responsibility. Often sellers discover a lack of planning permission years after their original purchase, as prior to 2010 there was no obligation for the planning permission to be in order before a purchase. According to cases tested in the Irtalian courts, neither the Notary nor an Estate Agent/mediator is deemed to have any professional liability to the Buyer for a false declaration made by the Seller. Nor is it relevant that the authorities had inspected the property in the past but failed to note the difformities.
It is advisable for a seller or donor to have in place an “Attestazione di conformità urbanistica” prepared by their geometra or Architect, which will give reassurance to the buyer and which the Notary will refer to in the sale contract.
This issue has blocked the sale in the last 10 years of many properties which are “abusivi”. There is hope, possibly unrealistic, that the Italian government may issue a new “condono” such as it did in 1986, ie a law which allows all illegal building to be legalised on application within a certain timeframe and on payment of a fine.
For further informaiton in relatino to the sale of a property in Italy please contact Charlotte Oliver or Marco Magaraggia.
