3-4/2005 UINL - Notarius International

152 D. Ockl, Protection of the Purchaser of Immovables to be built in Italy Notarius International 3-4/2005
- and the particulars provided for in Article 2826, first indent
of the Civil Code (specific description of the
property with an indication of its nature, of the municipality
in which it is situated, and of the land registry
details; for buildings in course of construction the land
registry details of the land on which they are situated
must be given).
b) exact description of the property and of all appurtenances
for exclsuive use under the contract;
c) the conditions of any mandatory acts and planning
agreements drawn up in order to obtain building permits,
together with a list of the obligations laid down;
d) the technical characteristics of the construction,
with particular reference to the load-bearing structure,
foundations, cementing, floors, roof, and fixtures and fittings;
e) the deadline for completion of construction, with
reference also to the various stages of completion of the
works;
f) indication of the overall price in monetary terms or
the value of any other amount payable, the terms and
methods of payment, specification of the amount of any
sums by way of deposit; the methods of payment of the
price must be by bank credits or direct payments to current
bank or postal accounts indicated by the vendor and
made out to it or in any other form providing evidence of
receipt of payment;
g) the conditions of the guarantee referred to in
Article 2;
h) the existence of any mortgages or charges of any
kind entered against the property with an indication of the
relevant amount, of the person in whose favour and the title
under which they are registered, together with express
mention of the builder’s obligations connected therewith
and an indication of whether those liabilities must be discharged
before or after the definitive sales contract has
been entered into;
i) the conditions of the building permit or of the application
therefor if it has not yet been issued, together
with any other instrument, notice or building approval;
j) the existence of any subcontractors and conditions
in relation thereoto.
6.2 Legally required Annexes
The following shall also be appended to the preliminary
contracts:
a) the specification containing the characteristics of
the materials to be used, set out according to typology,
characteristics and homogeneous values, together with
the list of all the finishings and the accessories agreed between
the parties;
b) the project papers on the basis of which the building
permission was requested or granted, or the most recent
alteration to the original project, comprising the
graphical representation of the properties subject to the
contract, relevant exclusive appurtenances and other
common parts.
6.3 Penalties
However, the legislation does not provide for any
penalty in the event of infringement of its provisions.
Initial commentators have proposed various solutions.
Some maintain that since infringement would concern a
mandatory provision, the consequence must be nullity;
others that infringement gives rise only to an obligation
to renegotiate the contract so as to bring it into line with
legal requirements, subject to the right of the purchaser to
rescind the contract and seek compensation for loss.
Yet others consider that the consequence is merely an obligation
on the part of the builder to provide compensation.
7. Insurance obligation
Article 4 of the decree provides that the builder is
obliged to take out and hand to the purchaser with the
deed of transfer of the property a ten year indemnificatory
insurance policy in favour of the purchaser. That is
to be effective from the date of completion of the works.
It is to cover material and immediate damage to the property,
including third-party liability, which is required under
Article 1669 of the Civil Code, as a result of the total
or partial collapse of the building or serious construction
defects in the works, owing to a defect in the ground or a
construction defect, which manifest themselves subsequently
to the drawing up of the definitive sale and purchase
contract or assignment.
Thus the policy is designed to ensure compensation for
losses consequent upon defects in the property coming
to light after the definitive contract of sale and purchase
or assignment has been entered into.
The legal guarantees under the contract (Article 1667 et
seq. of the Civil Code) extend therefore to all the situations
in which the purchaser takes out a contract intended
to insure subsequent acquisition of title to an immovable
to be built (or other right in rem in it); this means
that it is not possible for all the effects of the negotiated
transaction (or individual parts thereof) to be dealt with
once for all under the contract.
The deadline by which the policy must be drawn up and
delivered to the purchaser is the date of transfer of title.
No formal obligation is laid down as to documentation
of the conditions of the policy or of delivery thereof.
The law lays down no specific penalties in the event of
failure to obtain the policy. It is considered that failure to
obtain the policy gives rise to civil liability on the part of
the builder, affording the purchaser legitimate grounds
for refusing to enter into the definitive contract.
8. Obligation to cancel or fractionalise mortgages
taken out
8.1. Obligation to subdivide real estate financing
By way of an insertion in the single banking code
(Testo Unico Bancario – TUB) 3 , Article 7 of the decree
confers a right to the subdivision of the financing into
shares and, correspondingly of the fractionalising of the
3 contained in legislative decree no 385 of 1 September 1993.