If you are involved in the purchase or sale of a property, there is inevitably a significant amount of paperwork involved. This is the case the world over, and Italy is in no exception.
A new certificate for a building must be requested from the local authority, within 15 days of the works being completed, for the following:
- New constructions;
- Total or partial restructuring works or extensions to existing buildings;
- Any building works on pre-existing buildings that could affect any of the regulations as above.
The procedure in obtaining this certificate has changed in recent years with the effect that anyone planning to construct a new building, or start works on a property which may affect the regulations, must be aware of the procedure in obtaining this certificate, as well as the documents that are to be submitted.
The building must have this certificate before an individual can sell their apartment. If the building has been subjected to any of the works above, a new certificate must be requested from the local authorities.
There has been a lack of clarity as to whether the hard copy of the certificate itself must be produced before or at the deed of sale, as there is no legislation which clearly states that the certificate must be produced at the completion date or the consequences of failing to so. This raises the question of whether the seller can simply declare that the building has a certificate. As an example of a situation where these ambiguities might arise is if there have been no changes to the building in years, and one seller of an apartment is simply selling their property.
However, the Judges in the Supreme Court debated this position and a 2016 judgement established that the presentation of this certificate at the completion is necessary (this was confirmed by more recent case law).
They found that it is the seller’s obligation to produce this document, in accordance with the Italian Civil Code which states that the seller must produce all documents related to the property and its use. A failure to provide this certificate will constitute the seller’s breach of contract, and a resolution of the contract will be justified. This will be the case even if such a failure to produce this document is not the seller’s fault, for example, if the certificate exists but the seller doesn’t have a copy because the local authority has been very slow in producing a copy.
The courts have concluded that, in the absence of such a certificate, any refusal on the buyer’s part to complete is therefore justified, as he/she has the right to be guaranteed that the property is both fully compliant to all building regulations, be fit for use, and is saleable.
If the seller doesn’t provide the buyer with this certificate, but a deed of sale is signed nonetheless, the failure to produce this certificate will not render such a deed of sale voidable.
However, the absence of such a certificate provides the buyer with a legitimate claim for breach of contract. In practical terms, this means they could ask for a substantial reduction in price, in view of the lack of certificate and subsequent insecurity in the apartment’s use and marketability in the future.
If the seller fails to produce the certificate by the date that was agreed between them to formally sign the deed of sale, the buyer could refuse to complete due to the seller’s breach of contract. The seller would then, by law, have to pay the buyer twice the deposit received, together with any damages caused as a result of this breach.
Therefore, when considering selling an apartment in Italy, it’s vital to make sure that the building the apartment is in has the “Certificato di Agibilità” and all the necessary enquiries must be made to find it. If the building administrator doesn’t have such a document, this must be requested from the local authority, which could take up to a year to obtain and incur substantial costs.
In any event, this must be done before you accept any formal offer to purchase your property or sign any preliminary contract of sale. If you are unable to sell within the agreed date for completion, you may risk losing a significant amount of money in either the proceeds of the property or in payment of damages for breach of contract.
There may be legitimate reasons why the building does not possess a certificate and which exempts the seller from producing the same. However, it’s advisable to check with a professional as to whether these exemptions apply to the apartment building and to discuss them with any potential buyer to ensure that there are no misunderstandings.
