Is it possible to sell a property with urban planning irregularities? The answer, thanks to the ruling n. 8230 of 22 March 2019 of the United Sections of the Court of Cassation (available at the following link: Cassation-civil-United-Sections-sentence-8230-2019.pdf), is finally clear: yes, under certain conditions.
The Supreme Court has resolved a long-standing jurisprudential conflict by establishing that Real estate transfers are valid if the details of the permit on the basis of which the building was constructed are reported, even if the property was built in partial or total non-compliance with this title.
The legal principle is now unequivocal: the nullity provided for by Presidential Decree no. 380/2001 (art. 46) and by Law no. 47/1985 (arts. 17 and 40) is of a “textual” nature and affects exclusively those deeds in which, by declaration of the seller, the details of the title enabling the property are totally missing.
This ruling has overcome the previous distinction between essential and non-essential variations with respect to the building permit., which created uncertainty in identifying the boundary between marketable and non-marketable properties. The Court of Cassation highlighted how this distinction generated practical complications, making the boundary between major abuse (which determined non-marketability) and minor abuse (which allowed the circulation of the property) unclear.
According to the United Sections, the urban planning law provides for hypotheses of nullity that are only formal pursuant to art. 1418, paragraph 3 of the Civil Code, and not substantial. This is because any limitation to the free circulation of goods must be interpreted restrictively and not analogically.
In practice, a property will be unmarketable and the related transfer deed null and void only in two cases:
- When the seller does not declare the enabling title in the deed to the construction of the property
- When the seller declares that the property was built under a non-existent title or refers to a different building from the one sold
The Court specified that this approach does not devalue the fight against illegal building, which must be pursued with instruments other than the nullity of the deeds, which would entail an inadmissible limitation on the sale of real estate.
This ruling has important practical implications: in the presence of the declaration by the seller of the details of the urban planning title (real and referable to the property), the contract is valid regardless of the conformity or non-conformity of the construction with respect to the title mentioned.
This does not mean that urban planning irregularities are irrelevant: they maintain relevance on the administrative, criminal and civil levels (for example in terms of defects in the item sold), but do not affect the validity of the transfer deed.
The ruling highlights the importance of thorough technical and legal due diligence before purchasing a property, to verify the correspondence between the actual state and what is declared in the building permits, thus avoiding unpleasant surprises in the future.
Content by the Lawyer. Gianmaria Pesce
