3-4/2005 UINL - Notarius International

Notarius International 3-4/2005 D. Ockl, Protection of the Purchaser of Immovables to be built in Italy 151
struction has not been completed to a stage enabling the
certificate of viability to be issued (art. 1 (d) of the legislative
decree).
The following are excluded from the rules on protection:
- the purchaser of buildings in respect of which building
permission has not yet been sought or in respect of
which there is no other notice or approval, and in respect
of which the building plans have been drawn up
by the vendor but have yet to be submitted to the competent
municipal offices;
- the purchaser of buildings in respect of which issuance
of a certificate of viability (certificato di agibilità) has
already been sought inasmuch as the buildings have
also been completed in regard to finishings.
The legislation applies whenever the immovable to be
built is governed by the contract in a manner which may
be described as dynamic: where, that is to say, the builder
vendor undertakes to complete the construction of the
building and transfer of title is deferred to the time of
completion which will occur under the care of the vendor.
Conversely, the legislation does not apply when the
property passes under a contract which may be described
as static, that is to say where the vendor sells with immediate
effect an unfinished property and it is left to
the purchaser to finish it.
4.3 Requirements with regard to the type of contract
The new legislation applies to contracts whose object is
the deferred transfer of title or other right in rem over
an immovable yet to be built, such as for example:
- preliminary contract for the sale of a building to be built
(sale of a future item, Article 1472 of the Civil Code),
- sale of a building in course of construction in the ownership
of third parties (sale of an item belonging to another,
Article 1478 of the Civil Code),
- exchange of area with a unit to be built (exchange of
an existing item with a future item),
- sale and purchase with reservation of title (Art. 1523
of the Civil Code).
5. The guarantee
By way of protection for the purchaser, the decree lays
down in Articles 2 and 3 an obligation on the builder to
provide a guarantee securing all the sums or in any
event amounts received or to be received by the builder
until transfer of title in the property or other right in rem.
That guarantee must afford restitution of sums paid and
of the value of any other amounts received in the event
that the builder enters a situation of crisis.
The guarantee must be issued by a bank, an insurance
company or other financial intermediary authorised in
that behalf and must also provide for a waiver of preventive
enforcement against the principal debtor, as mentioned
in Article 1944, second indent of the Civil Code.
The contract must mention the terms and conditions of
the guarantee.
The following are excluded from the guarantee obligation:
- sums in respect of which it is provided that they are to
be granted by a lending institution (the situation in
which the loan granted to the purchaser is guaranteed
by a mortgage secured on the property granted by the
builder as the third-party mortgagor).
- public contributions already supported by a separate
guarantee.
If a guarantee is not issued the decree (art. 2) provides
that the contract shall be null and void. However, nullity
may be relied on only by the protected purchaser
and not by the builder.
The guarantee ceases to be effective on transfer of title
to, or of other right in rem in the property, or on the definitive
act of assignment (Art. 3 (7) of the decree).
The guarantee may be enforced as from the date on
which the builder vendor is established as being in a situation
of crisis, provided that:
- in the event of registration of distraint concerning the
property in question, the purchaser has given notice to
the builder of his desire to rescind the contract;
- in cases where the judgment declaratory of bankruptcy
or other liquidation procedure is published, the competent
authority under that procedure has not communicated
an intention of taking over the preliminary
contract.
A crisis situation is defined as the situation occurring in
cases where the builder is subjected or has been subjected
to a writ of execution over land in relation to to the
property under the contract, or to bankruptcy, extraordinary
administration, preventive arrangement with creditors,
compulsory admininstrative liquidation. (Article 1
(c) of the decree).
6. Contents of the contract
6.1 Preliminary contract
Article 6 of the decree establishes that the preliminary
contract or any other contract directed at the subsequent
acquisition by a natural person of the property or of any
other right in rem over an immovable yet to be built, must
contain:
a) the particulars provided for in Article 2659, first indent,
point 1)
- (surname and forename, place and date of birth and tax
code number of the parties, together with, if they are
married, details of the regime governing the conjugal
assets, in accordance with the particulars of their declaration
or in a certificate issued by the registrar of civil
status;
- the name or company name, the registered office and
the tax code number of the legal persons, of the companies
provided for in Chapters II, III and IV of Title V
of the Vth book and of non-recognised associations,
with particulars, in regard to the latter and for ordinary
companies, of the persons which represent them under
the terms of the deed of incorporation;