Buying a house without occupancy certificate

What happens to the real estate sales contract if it is not usable? Can I request a cancellation?

In the sale of real estate, theabsence of certificate of aptitude affects the validity of the contract, rendering it null and void. Nullity is a particularly serious defect, because it can be invoked at any time, without time limit, by any person with an interest (for example also by subsequent owners of the property). A void contract is as if it had never existed: it therefore produces no legal effect. But how to prevent these problems? In this article we will discuss thebuy a house without a viability certificate. We will see in which cases the buyer can bring an action against the seller to request termination of the contract (i.e. dissolution) and when such action is excluded. But let's proceed in order.

Is the sale valid if the house is not habitable?

The Court of Cassation, with sentence no. 23604/2023, clarified that the lack of certificate of aptitude implies the termination of the contract of non-compliance by the seller only if this omission is considered serious, or if it significantly affects the interests of the buyer regarding the purchase. The seriousness of the omission is assessed by the judge on a case-by-case basis, taking into account the usefulness and market value of the property.

The repercussions of the absence of the occupancy certificate vary depending on the possibility of remedying or not the non-conformities observed. If the missing requirements (sanitary, security, energy saving) make the property irremediably unusable, compromising its functionality and usefulness for the buyer, the latter may request termination of the contract. This scenario is defined by lawyers as a “sale of aliud pro alio”, which occurs when the good sold is substantially different from what was agreed or does not have the characteristics necessary to satisfy the needs of the buyer.

Otherwise, if the deficiencies noted they are curable, the situation changes. We are talking about a simple defect in the good sold. In this context, the defects, being repairable, do not affect the essential functionality of the good or its destination. Consequently, the civil rules relating to defects in the thing sold apply, allowing the buyer to request the termination of the contract or one reduction in purchase price.

It is essential for anyone purchasing a property to ensure the existence and compliance of the certificate of occupancy to avoid legal complications and protect their investment. But it is clear that if the buyer was aware of the defect in the good (defect which must be reported on the authentic deed) and therefore purchased it knowingly, the sale is valid.

What happens if the occupancy certificate is not attached to the deed of sale?

Finally, the hypothesis in which the usability certificate does not physically exist (because it was never requested or because it was not annexed to the notarial deed) but the property meets to the requirements of hygiene, health, safety and respect for energy savings is different. aimed at making the house usable. In this case, the contract is valid. The buyer cannot therefore request termination of the contract given that the seller's non-performance is not serious enough to affect his interests. The latter can only request compensation for damage, for example for the costs incurred in obtaining said document.

Is the notary liable if there is no usability?

According to the Court of Cassation (judgment no. 23604/2023), it is not up to the notary to verify whether or not there is suitability, he can only point this out to the parties. However, he is required to sign the sales contract. It is therefore up to the seller to attach the certificate and to the buyer to verify that it exists and is regular.

What happens in the event of cadastral non-compliance?

The absence of the occupancy certificate is not the only element that can influence the validity of a real estate sales contract. It is essential that the the actual conditions of the property coincide with the information recorded in the land registerincluding the plan and cadastral data.

In accordance with article 29 of law no. 52 of February 27, 1985, the contract of sale of an urban real estate unit is void if it does not include identification and cadastre plans, as well as a Declaration of conformity of the latter and the cadastral data on the real state of the property.

Land registry compliance is divided into two fundamental aspects:

  • objective conformitywhich ensures the correspondence between the real estate status of the property and its representation in the land register;
  • subjective conformitywhich verifies the identity between the seller and the land registry that owns the property.

Lack of cadastral conformity (i.e. the absence of complete correspondence between the real state of the property and the information contained in the cadastral documents) can lead to the nullity of the sales contractto prevent and sanction discrepancies between the state of the property and the cadastral information, including possible violations of urban planning, as established by the Supreme Court in Sentence 3089/2020.

In terms of town planning compliance, which refers to the correspondence of the property with the building permits for construction or renovation, a contract is not automatically void in the event of irregularities. The Supreme Court, with sentence no. 8230 of March 22, 2019, clarified that the nullity only occurs if:

  • building permits are not mentioned in the contract
  • if they are cited, they are not authentic and do not refer to the property in question.

The responsibility for verifying cadastral and urban planning compliance lies with the parties concerned: the seller must declare, and the buyer verify, the correspondence between the state of the property and the cadastral data, as well as the authenticity and relevance of the building permits. . It is important to note that the notary is not responsible for these checks, even if the obligation to carry out cadastral checks on the transferred property remains.

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