Posted by on Jul 27, 2023 in LEGAL UPDATES

Share this article:

Checking the planning permission status of an Italian property before purchasing is just as important as studying the title or legal ownership history.

A Buyer who carries out a proper due diligence review of a residential property in Italy, before committing to a binding contract, should always ask the Agent or the Seller or their surveyor if the property has a certificate of habitability. In Italian this is the certificato di abitabilità also previously known as agibilità.

This certificate confirms that the property is fully in line with national, regional and local building regulations, including those concerning hygiene and sanitation, that guarantee the property is fit for residential use and therefore that the building is able to “fulfil its economic/social function”. The property may need to be in line with specific local regulations on ceiling heights or window size for example that may vary between Regions of Italy. The lack of this certificate affects the commerciability of the property and therefore may impact the market value.

This certificate is not a legal requirement for all properties however. If the property was built before 1967 there is no legal responsability for the owner to obtain this certificate, subject to the property complying with health and safety regulations in place earlier (the relevant legisltation before 1967 dates back to 1934). However, if the property was built after 1967, or restructured even partially after that year, it would be required. The certificate is obligatory for all properties built or modified after 30/06/2003, or for works carried out on older buildings which have an impact on hygiene or safetey rules.

The exact form of the certification will depend on which year it was built in or when modification works were carried out, depending on the legislation in force at that time. Abitabilità is now obtained by means of an auto-certification made by a surveyor and filed with the Comune where the property is siutated.

Despite the certificate being a legal requirement, the Buyer can in any case choose to go ahead with a purchase in the absence of the certificate of abitabilità. The Italian courts have consistently ruled that this is entirely up to the parties who have the freedom to negotiate the terms of the contract on this point, and the lack of a certificate does not invalidate the purchase contract.  If the Buyer is willing to waive the need for the certificate it would be advisable in any case to check with the surveyor that in theory the property would have the necessary pre-requsites to obtain it in the future to avoid being unable to sell in the future or seeing its value fall.

It is recommended that the lack of the certificate, and the fact that the Buyer is aware of this and agrees to purchase the property regardless, should ideally be noted in all the contracts, even from the original offer to purchase and the preliminary contract, as well as in the final sale deed.

In cases where the Buyer is not made aware of the lack of the habitability certificate it is undisputed that they can have recourse to the courts for compensation. A recent ruling of the Italian Supreme Court, in relation to a purchase contract of 2003 of a property buuilt in 1965 and a lawsuit brought by the purchaser for damages in the Tribunale di Pordenone, confirmed that where there was no agreement between the parties accepting the lack of a certificate of habitability, the Buyer does has a right to claim termination of the sale contract for breach of contract and damages. (Corte di Cassazione 21.11.2022 n. 34211).