- PROTECT YOURSELF FROM POSSIBLE ECONOMIC AND LEGAL DAMAGES IN THE SALE OF A PROPERTY
- THE RULING UNITED SECTIONS CASS. CIV. 8230/2019 NULLITY BUYING AND SELLING AND TOWN PLANNING
- DOCUMENTS AND VERIFICATIONS REQUIRED FOR URBAN PLANNING COMPLIANCE
- THE PRINCIPLES OF LAW AFFIRMED BY THE COURT OF CASSATION IN RULING 8230/2019
- Avoiding bad surprises
What risks do those who wish to sell their homes face?
In more than 10 years of brokered real estate transactions, I can say that about 70 percent of these properties had discrepancies that could potentially have jeopardized the sale. While in the past the urban planning issue passed in the background, since the beginning of 2019 it has become the main concern of notaries throughout Italy.
Today, if a notarial deed contains errors in reporting the correct zoning titles, or transfers a property built in deviation from what was authorized by the municipality, IT IS NULL!
You can no longer sell houses, then?
Let us see together the correct procedure to avoid running into unpleasant situations...
PROTECT YOURSELF FROM POSSIBLE ECONOMIC AND LEGAL DAMAGES IN THE SALE OF A PROPERTY
If you wish to sell a property to capitalize on your investment, the most important advice I can give you is not to focus immediately on making a profit. This concept may sound strong to you, but the one-sided idea of making a (fair) profit often risks clouding the seller, making him or her become hasty and superficial. Nowadays, regulatory and bureaucratic controls on real estate purchases and sales are scrupulous, and the seller's responsibilities are many.When selling your home, you should never forget that it is essential to protect yourself from possible financial and legal damages.
The most serious damage to be prevented is that of the nullity of the deed, and to avoid this, it is important to check your property for regularity and the presence of any discrepancies that could prevent the sale or, even worse, nullify it.
THE JUDGMENT OF THE UNITED SECTIONS CASS. CIV. 8230/2019 NULLITY BUYING AND SELLING AND TOWN PLANNING
In support of this caution I suggest to you, the following have recently spoken out United Sections of the Court of Cassation in ruling No. 8230 of 29/01/2019 (dep. 22/03/2019) : there are in fact precise sanctions capable of annulling purchase and sale deeds for constructions lacking the correct building and zoning permits, and the United Sections of Cass. civ. have ruled on the jurisprudential contrasts in the interpretation of these provisions, to definitively clarify the requirements of buyer protection and the fight against squatting .
To prevent the purchase and sale from having delays (which could perhaps make it fade away) or from being compromised once it has taken place, with the risk of legal problems and unexpected financial outlays, the support of a trusted real estate advisor is very important: since neither he nor the notary have the concrete possibility of carrying out the necessary checks on your property (nor are they required to), a serious professional has his own network of specialized technicians to orchestrate to accompany you up to the moment of the deed.
DOCUMENTS AND VERIFICATIONS REQUIRED FOR TOWN PLANNING COMPLIANCE
In summary, the documents and related verifications you will need to provide before the sale are as follows:
- Title of provenance (Deed, Donation, Will, Succession, etc.).
- Certificate of Habitability or Fitness
- Qualifying title for construction: (License or Building Permit)
- Building permits for subsequent modifications or interventions (DIA, CILA, SCIA, Concessions)
- Condemnations obtained over the years for abuses carried out
- Correct cadastral survey
- Updated cadastral plan corresponding to the actual state of the property
- Energy Performance Certificate
- Check for mortgages encumbering the property (e.g., mortgages, seizures...)
By asking for support at this stage, you will feel less of the burden of bureaucracy, waiting times, the important distinction between the zoning aspect (at the municipality) and the cadastral aspect (at the Internal Revenue Service), and in general the uncertainty regarding the correctness of the documentation.
Because it is the documentation that determines the success of the sale; but, if this is not in compliance, or if the building title is missing, not mentioned, not existing, or wrongly cited, it is always the Unified Sections ruling Cass. civ. 8230/2019 that makes it clear that one incurs the nullity of the transaction.
THE PRINCIPLES OF LAW AFFIRMED BY THE COURT OF CASSATION IN RULING 8230/2019
The court of cassation was asked to judge what kind of nullity one "runs into" when failing to cite the correct building titles during a transfer of a property.
Virtual or textual nullity?
"The nullity imposed by Article 46 of Presidential Decree No. 380/2001 and Articles 17 and 40 of Law 47/1985, should be brought within the scope of paragraph 3 of Article 1418 of the Civil Code, of which it constitutes a specific declination, and must be qualified as textual nullity "
The United Sections, sharing the criticalities recorded by the remittal order No. 20061 of 30/07/2018 with regard to the substantive theory, adhere to the formal theory, that is, confirming the textual nullity of the act albeit with some correctives, and value a strict interpretation from a literal, teleological and constitutionally oriented perspective of Articles 17 and 40 Law 47/1985
"...a single case of nullity affecting deeds between living persons with real effects listed in the rules that provide for it, aimed at sanctioning the failure to include in said deeds the details of the title to the property, a title which, however, must really exist and must be referable to that very property."
After clarifying that the nullity of the transfer deed can only be declared if the formal indication of the building title is missing, the Supreme Court, overcoming in part qua the formal theory, specifies that:
1) The unmentioned building title must actually exist;
2) Misrepresentation is to be equated with non-declaration.
"In the presence in the deed of the alienator's declaration of the details of the zoning title, real and referable to the property, the contract is valid regardless of the profile of the conformity or non-conformity of the construction carried out to the mentioned title."
In conclusion, according to the United Sections, the transfer deed is void in all cases where the declaration containing the details of the building title is completely absent or when, although present, it is not correct and truthful, that is, actually referable to the negotiated property.
Otherwise, in the presence of a substantial discrepancy between the permit and the construction (i.e., right building title, but state of affairs of the property that differs from what was authorized), the deed of transfer remains valid and the administrative requirements related to illegal construction, including the absolutely most serious one of restorative action carried out through demolition, apply.
In this second case of substantial nonconformity, the buyer is not exposed to an action for nullity, with the result that he or she does not lose ownership of the property and can sue the seller seeking termination for non-performance, alternatively, seek damages.
Avoiding bad surprises
To avoid disputes during the negotiation or worse, after the purchase and sale, it is good to carry out a series of scrupulous checks BEFORE of putting a property up for sale.
By carefully and coolly performing these preliminary checks, you can be sure of what you are selling by documenting to any technician or notary you encounter the exact state of the art of your property.
Investing a few hundred euros before selling can save you thousands in technical advice, legal, if not even lawsuits or reimbursement of any damages.
Get follow up with those who know these issues and those who know how to deal with them.... Happy selling!
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