Real estate sale and certified notification of viability

Following the changes introduced by D.Lgs. 222/2016 to the Consolidated Building Act referred to in D.P.R. 380/2001il certificate of viability and the habitability certificate have been replaced by the Certified Usability Report (SCAG). This is a self-certification that replaces the certificate issued by the municipality that must be delivered by the interested party once the work on the property is finished and is mandatory in the following cases:

  • new buildings;
  • in the hypothesis of reconstructions or elevations, both total and partial;
  • in the hypothesis of interventions that can modify the safety, energy efficiency, healthiness or hygiene of the building.

The seller is required to deliver to the buyer the documents certifying the practicability as this documentation falls within those “titles and documents relating to the ownership and use of the thing sold“Which must be delivered to the buyer pursuant toart. 1477, comma 3 c.c. (see Court of Cassation civ. 08/02/2016, n. 2438) and this regardless of whether it is for sale for residential or commercial use.

But what happens if the delivery of the certificate of viability or, again, of the certificate of viability / habitability is omitted?

The Court of Cassation has recently expressed itself in this regard which, by order of 11/02/2022, n. 4467 confirmed the majority orientation according to which “Failure to deliver the certificate of habitability to the buyer does not automatically result in the termination of the preliminary contract due to default by the seller, as the importance and seriousness of the omission in relation to the enjoyment and marketability of the asset must be concretely verified;“(See also Cass., Ordinance of 5.12.2017, n. 29090).

While not in itself a condition of validity of the sale, the delivery of this certification integrates an obligation incumbent on the seller pursuant to art. 1477 of the civil code, complying with an essential requirement of the thing sold, as it affects the possibility of legitimately assigning it to the contractually envisaged use (cf. Cass., Section II, 11 October 2013, n. 23157).

It should be noted, however, that the sale of an apartment without viability is abstractly valid (unlike the sale of an illegal property), as the parties may agree and agree on the transfer of the property regardless of the existence of this certificate. The need is that the promissory purchaser is aware of this circumstance and has explicitly approved it in writing and this because “in the sale of a property intended for residential use, the certificate of habitability constitutes an essential legal requirement of the property sold, since it affects the aptitude of the good itself to fulfill its economic-social function, ensuring its legitimate enjoyment and marketability; with the consequence that the failure to issue the habitability license integrates a default by the seller for delivery of aliud pro alio, unless the buyer has expressly waived the requirement of habitability or otherwise exempted the seller from the obligation to obtain the relative license” (Cfr. Cass. Civ., n. 23265/2019).

In the event that, on the other hand, this circumstance has been omitted by the owner of the property or, again, by the real estate agency, the buyer has the right to:

  • demand the release of the SCAG at the seller’s expense;
  • ask for compensation for damages for the purchase of an asset of lower quality than the one promised or, again, for a reduction in the price (opting in any case to purchase the property);
  • ask for the termination of the contract, with consequent return of the property and obtaining a refund of the price paid in addition to the further damage suffered as a result of the unsuccessful sale;
  • withdraw from the contract and obtain the refund of double the deposit paid at the time of signing the preliminary contract.
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