I bought an Italian property and now there are big cracks in the walls. What can I do?
You moved in to your new Italian house three months ago and since then some serious cracks developed in a wall.
You called in a surveyor (geometra), who has informed you that there’s a serious structural problem. You expect to receive a full written report from the surveyor within the next few days.
In this case, you are entitled to dispute the legality of the deed of sale (atto di vendita). However, you will need to take prompt action.
According to Italian Civil Code Sales Contract Law, the vendor’s liability has a short limitation period. Art. 1495 c.c. provides that actions must be brought by the purchaser within one year of the date from which the product was delivered – in your case the deed of sale for the property – and actions can only be brought if the purchaser has declared the defect to the seller within 8 days of its detection.
As Italian Sales Contract Law is complex, I would advise that you engage an independent lawyer, experienced in Italian property law to help you through the whole legal process.
According to a ruling by the Court of Caltanissetta in May this year, if a vendor is deemed to have hidden serious structural issues from a purchaser prior to the completion of a property sale, this constitutes a breach of contract.
Structural defects, such as big cracks in the walls, significantly reduce the value of real estate property. If defects are discovered by a buyer after signing the deed of sale, the buyer has the right to reverse the property transaction, within the above mentioned time frame, on the grounds that the price did not reflect the value of the property. Under Italian Civil Code, if the buyer and vendor cannot reach an amicable resolution, out of court, the buyer can institute legal proceedings against the vendor with a view to obtaining restitution of the price paid for the property in exchange for the return of the property to the vendor.
The property buyer has these rights regardless of the cause of structural defects. In essence, the deed of sale could be rescinded either on the grounds of construction defects, namely the builder’s responsibility, or because of external factors such as the consequence of subsidence of the site upon which the property stands.
In addition, a deed of sale can be rescinded even if the buyer inspected the property before signing the deed, and felt it conformed to expectations. Irrespective of whether or not the buyer engaged a surveyor to check for any structural problems during due diligence; structural defects are deemed latent, or to be precise, difficult to see with the naked eye. Therefore, even if a surveyor inspected the property, the defects were not visible.
However, it should be pointed out that patent defects, those that are easy to see or visible, such as a window that does not close properly, or partially removed tiling, would not entitle a buyer to rescind a deed of sale.
Litigation is the traditional process for resolving legal disputes on civil matters. It is used where the party starting an action – the plaintiff or claimant, seeks a legal or equitable remedy. A defendant is required to respond to the plaintiff’s complaint. If the plaintiff is successful, judgment will be given in the plaintiff’s favour. A party can make an offer to settle at any stage, but the dispute cannot be resolved through negotiation, it will be heard in court. Litigation is tried and tested with a vast body of case law. The court will impose a final decision that parties are obligated to respect. The outcomes of litigation are, without exception, binding and enforceable, while being subject to appeal. Litigation is likely to be lengthy and expensive.
Returning to the ruling by the Court of Caltanissetta. Following the purchase of a newly constructed apartment, the couple who had purchased it, noticed some cracks on the walls and floors. The couple spoke to neighbours in their building and discovered that other neighbours had the same problems.
The owners got together and instituted legal proceedings against the vendors. The plaintiffs were seeking reversal of their purchase contracts and compensation for damage. The plaintiffs accused the vendors of deliberately hiding the real condition of the properties. For their part, the defendants claimed the buyers had seen the properties before signing deeds of sale and as such, were aware of the state of the apartments.
However, the purchasing parties had only noticed, “a few little holes”, maintaining that, “the real problem hadn’t yet emerged.” Despite the defendants’ declarations, the court ruled that they knew the true state of the apartments because they had participated in a meeting at the Town Hall’s Technical Office, to discuss geological issues related to the site.
The court ruled in the plaintiffs’ favour.
Whoever sells goods – a mobile phone, a garment, a pair of shoes, or any other item including property real estate – has to guarantee that the good has no inherent flaw (cracks, holes, etc.); that it is fit for purpose.
The Italian Civil Code states that a vendor of any item must guarantee that the item has no faults, which would make it unusable or unsuitable for its intended use, or would significantly reduce its value.
In this case, the good – a property – presents defects which could cause instability and would entail a huge risk for the new owner’s safety.
Selling an uninhabitable property implies that the buyer is entitled to rescind the contract with the vendor. It should be noted that for the buyer to be entitled to this right, defects, either latent or patent, must be serious irregularities which render the property uninhabitable.
In case of a dispute, the deed of sale contract is of great importance. It is important that you understand exactly what the contract says and how it affects your possibilities to make claims against the other party. For anyone not regularly buying or selling real estate, it is always recommended to have a lawyer go through all legal documents pertaining to the sale before you sign anything. Make sure you engage an independent lawyer – someone who is not involved with any other parties (vendor, developer) in the transaction.
If you are looking for more information about the Italian property purchasing process, please read our guide.
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