Hidden defects. Buyer beware!
Where exactly do you stand if you discover hidden defects with your Italian real estate following completion?
You move into your dream Italian home to find a nightmare situation.
This is exactly what happened to the Wright family in Lazio. The day after moving in, they discovered there was serious water penetration in several rooms in the house, notably the kitchen and living room.
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Disclosure of hidden defects in Italy
Following their discovery, the Wrights raised the matter with the estate agent and the previous owners. They denied there was a serious problem. The notary who had overseen the sale said the Wrights had signed a legally binding preliminary contract declaring that they were purchasing the property ‘in condition as seen’. As such, there was nothing the notary could do.
Well possibly, but Italian law on this issue is not quite so clear cut. In general, the principle of, ‘caveat emptor’ – buyer beware, applies as much in Italian law as it does elsewhere. The onus is therefore on the buyer to conduct thorough due diligence relating to a property before buying it.
In Italy the seller has an obligation to disclose to the buyer all ‘important information’ concerning the property. However, there is nothing in Italian law that specifically defines these disclosures to the buyer. The law states that important information must be of a profound nature. Something which the seller was aware of at the time of the sale. An issue that if the buyer had known about it, would have halted the purchase, or they would have offered a lower price for the property.
A vendor is obliged to disclose any ‘hidden defects’ (“vizi occulti“) in the property. If the vendor fails to disclose hidden defects, then it is possible for a court of law to annul the sale, or at least reduce the price of the property.
The Wrights ended up in litigation in order to obtain compensation. However, if the Wrights had sought advice from a lawyer before signing the preliminary contract, they could have avoided a lot of heartache not to mention a costly and time-consuming court case.
A strong preliminary contract is your best protection against hidden defects
Real estate agents generally offer a standard, one size fits all preliminary contract form. The form contains a legally binding, standard exclusion clause pertaining to ‘sight as seen condition’.
If you are in the process of buying a property in Italy before you sign a standard preliminary contract, check to see if it contains a sight as seen clause. The wording may vary but would be something like this: “L’acquirente dichiara di aver preso visione dello stato di fatto in cui attualmente si trova quanto promesso in vendita, di averne valutato le caratteristiche e le qualità (anche ai fini della determinazione del prezzo di vendita) e di accettarle integralmente”.
In practice whether a court of law upholds this clause depends on the circumstances of the case. If the court considers that the vendor has deliberately misled the buyer, then the judge may annul the clause.
Our advice to buyers is that you should always seek legal advice before signing any legally binding document. You may request removal of the sight as seen clause from a preliminary contract. The vendor may well refuse to do this. If so, you should question why.
Buying Italian real estate is a major investment for most people. The preliminary contract in Italian property purchases is key to buying safely. As Italian property law specialists, we recommend that you seek legal advice. Unless you understand exactly what you are buying and the commitment you are making, you should be cautious about signing anything.
If you are looking at a real estate investment in Italy, why not talk to us? De Tullio Law Firm can advise and guide you throughout your Italian property purchasing journey. We have over 55 years of experience working with clients on property, family and inheritance matters. Get in touch.
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