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Italian Property. Who is liable for detailed checks for the final deed of sale?

Buying and selling real estate: limits and obligations of the Notary Public

Italian Property: Deed of sale in real estate

If you are considering buying or selling a property in Italy, the assistance of a Notary Public (notaio) is obligatory. According to Italian law, a notary can provide legal advice if requested, but must remain impartial during the property transaction.

Caveat Emptor – Buyer Beware!

So, who is liable for detailed property-related checks and searches prior to completion of a final deed of sale? You may think it is the responsibility of your notary to check these matters, but that is not the case. You, as the buyer, are responsible for ensuring that you know exactly what you are buying and you would be well-advised to seek independent legal advice.

There are some peculiarities that everyone involved in Italian property transactions needs to be aware of. One of these oddities relates to requirements and the details contained in a certificate of habitability (certificato di abitabilità).

A certificate of habitability is a document attesting a property is fit for purpose; that it meets all necessary health, safety and planning regulations. It is required when connecting utilities (power, water, etc.), renting a property, obtaining a mortgage or selling a property. The details contained in a certificate of habitability are extremely important. It is vital to check that it pertains to the whole of the property you wish to purchase.

Take for example the case of Mr and Mrs Smith, who purchased a second home nestled in the hills of the Abruzzo countryside near Teramo. One of the features that attracted the Smiths to the property was the potential they saw to transform the spacious attic into additional accommodation. Their intention was to create a self-contained penthouse, where their adult children could bring their grandchildren to spend summer vacations.

According to the deed of sale, the real estate had a certificate of habitability. The Smiths assumed that their notary had checked the details of the certificate. It was only after the purchase, when the Smiths started to plan their project with a local architect, that they made the painful and costly discovery that the attic was not in fact included in the certificate of habitability. Where did they stand from a legal point of view?

The obligations of the Notary Public in a final deed of sale

You may think the Smiths’ is an unusual situation, however over the years, there have been numerous similar cases. Many of these have landed in the Italian courts. In one such case, the buyers of a property sued the notary, who had formed the final deed of sale, for professional failure to verify whether a certificate of habitability existed for the whole of their property.

The court rejected any professional liability claim against the notary. The buyers appealed, but their challenge was overturned. The judgment specified that a notary’s liability is limited to obtaining a property vendor’s declaration that the property is fit for purpose. A notary is under no obligation to verify factual circumstances such as checking the details of a certificate of habitability.

The buyers decided to further appeal the case in the Supreme Court. The buyers argued that a notary, in fulfilling his role as guarantor to the certainty and seriousness of property purchase, has a legal obligation to take all necessary steps to ensure that a property purchase is safe and secure.

But, the Supreme Court rejected the buyers’ appeal. The ruling established precise boundaries regarding a notary’s professional responsibilities. A notary must conduct land registry and mortgage searches to ensure there are no legal impediments and/or encumbrances. Where any issues are found, the notary has a duty to inform the parties to the transaction. However, a notary’s obligations can not be extended to the point of assigning responsibility to ascertain, in practice, the existence of qualities that do not affect the marketability of the property.

This therefore means that a notary is merely obliged to verify the existence of a certificate of habitability. Where a certificate of habitability exists, the technicalities and details such as whether all or only a part of a property is covered by the certificate are deemed beyond the notary’s competence and liability.

Where a property completely lacks a certificate of habitability, the notary is legally bound to inform the parties of this and to outline the legal consequences arising from the absence of the certification.

Even if a property doesn’t have a certificate of habitability, it can still be considered marketable. While a certificate of habitability endorses that there are no issues which may compromise health and safety, the absence of a certificate neither constitutes an impediment to the sale and purchase of a property, nor does it affect the validity of a deed of sale. The notary will stipulate in the deed of sale, that despite the lack of certificate of habitability the parties have agreed to complete the sale and purchase of the property. A notary may also add a clause that designates one of the parties to the transaction as being responsible for obtaining the relevant certificate.

It is also worth underlining the aspect of planning permission checks. A notary is charged with verifying the presence of planning permission for a property, but is not responsible for ensuring that a property actually complies with the planning permission. Again, the onus is on the property buyer to check the details of all documentation related to planning.

To conclude…

Liability related to a deed of sale, involving not only the selling and buying parties but also a notary public, represents a complex legal matter which can have far-reaching consequences.

For many, buying a property in Italy represents a huge investment. For this reason, it is of the utmost importance to engage an independent lawyer for guidance and to review the deed of sale before you sign it. Such a review is typically inexpensive, and serves to make sure your interests are protected.

Should you need further information concerning deeds of sale for your Italian property, please contact the legal professionals at De Tullio Law Firm: