Legal Considerations for a Home Sale in Italy: Building Permits and the Title Deed

Several formal and substantive requirements regarding building permits have to be met when buying a property in Italy to ensure the deed is legally correct, tax obligations have been met and to protect buyer and seller from "misunderstandings" which could arise after the sale.

Building permits must be mentioned in title agreement

To begin with, the sale deed must mention all significant building permits ("titoli abilitativi") which have been issued for the building, or unit in a building (e.g. apartment in a condominium). The recommendation is to cite all building permits, major and minor. Nationally building permits were introduced in 1942 (L. 1150 / 1942) ¹ for urban areas, extended to rural areas in 1967 (L. 765 / 1967) ². Some towns may have issued building permits before 1942. Failure to mention the building permits, or at least a statement by the seller that construction began before 1 September 1967, renders the title null, it never came into being ³. The permits must exist, must be for the building being sold, but do not have to be presented to the buyer nor to the Notaio. A lie in a public deed contract is, according to article 483 ⁴ of the penal code, punishable by up to 2 years in jail.

The intent of the requirement to mention building permits is primarily to stop the sale of properties built in the compete absence of planning permisson.

A sworn declaration of building's "lawful state" could be attached to deed

Mere existence of building permits does not guarantee that what was actually built matches what was permitted. Legislation approved in 2020 (D.L. 76 / 2020) ⁵ goes several steps further, suggesting that the lawful status of the building be verified, by building permits, or in their absence by other unequivocal documentation, such as tax office (catasto) records. Moreover the existing construction must reflect what was permitted, within specific tolerances. In the case of property sales, a sworn declaration of the lawful state could be attached to the deed of sale: "dichiarazione asseverata allegata agli atti aventi per oggetto trasferimento ... di diritti reali". In classic Italian fashion, the language is ambiguous and no penalty is specified by the law, paving the way for additional litigation to tie up the court system.

In most of Tuscany and in some of Emilia Romagna, a sworn report (conformità urbanistica) by a qualified technical professional (geometra, architect, civil engineer, perito industriale) has been part of the sale process in practice, if not in law, for 5-10 years; the primary changes are in specifying tolerances for compliance and indications that the sworn report be attached to the deed.

Tax office records (catasto) must be correct: "conformità catastale"

A 2010 law ⁶ requires that the tax office floor plan (planimetria catastale) accurately reflect the property as it is today, within certain tolerances which don't impact the property's tax appraised value. The textual record, in so far as it would impact the tax value, must also be accurate. While the property's address does not have to be corrected, it is a good idea to do this as part of preparing a property for sale. A Notaio may ask the parties, buyer and seller, to sign the tax office floor plan and may attach it to the sale deed, but this is not required.

The tax office property records exist separately from the town planning office property records. Correcting records in the town planning office does not automatically correct tax office records and vice versa, except in limited areas of northern Italy which use a unified record keeping system inherited from former Austrian rule.

Legal professionals don't and cannot verify technical compliance

A common misconception among buyers of property in Italy, both natives and foreigners alike, is that the legal professional, the Notaio, verifies the accuracy of the technical documentation of a property. A legal professional is not a technical professional. Only a qualified technical professional (geometra, architect, civil engineer, perito industriale) can verify the correctness of technical documentation. They must do so with a sworn declaration: look for the word "asseverata". Those coming from common law jurisdictions will have an automatic impulse to "get a lawyer". Without putting too fine a point on it, trying to use a screwdriver when a wrench is required isn't going to help: the solution is a technical professional, not a legal professional.

What happens if unpermitted construction is found before a sale?

Historically there was less rigor in taking out building permits than is expected today. It isn't much of a stretch to say that most homes in Italy have building permit issues which need to be rectified before a sale. It is strongly suggested the seller provide a sworn lawful state of the property report (technical conformity) as a condition of sale.

The technical conformity report may take several months due to the time to request documentation from the town planning office, to perform measurement and to write the report.

Issues which may emerge:

• minor deformities beyond allowed tolerances: retroactive permission accomplished with notification to town
• medium deformities: retroactive permission requested from town
• deformities which cannot be currently be permitted: the situation needs to be modified (including demolition) to match what was actually permitted.

The presence of unpermitted work will delay a sale. The length of delay will depend on the severity of the issue, the availability of the technical profession and builders if required, the time of year (holidays get in the way).

What are the implications of a buying home which has unpermitted construction (abuso edilizio)?

There may be reasons a buyer, aware of unpermitted work, wishes to proceed with the purchase of a property in its current form.

1. The deed transfer agreement must mention major construction permits, the permits must exist and refer to the property being sold. Thus it is not possible to sell a property built after 1942 (in an urban area, 1967 in a rural area) which doesn't have at least an initial building permit.
2. Buyers requiring a mortgage will find a bank will be unwilling to lend on a property if building permit issues are not resolved before the sale completion.
3. Future construction permits subject to approval by the town have as a perquisite the legitimate state of the property.
4. Should there be proof the buyer was aware of the unpermitted work at the time of the sale, then the buyer is also jointly responsible ⁹ for possible fines and the cost of demolition should demolition be executed by the town. In extreme cases, e.g. continuing to execute unpermitted work despite a suspension order, a prison sentence is possible. In practice enforcement is weak.
5. The tax office documentation must accurately reflect what is being sold at the time of the sale; a post sale tax audit could be painful if it emerges the tax parameters indicated at the time of the sale undervalued the property and thus the tax paid.

Aware or not, a buyer who inherits unpermitted work must resolve (remove or, if possible, obtain retroactive permission) the issue as soon as it comes to their attention. The presence of unpermitted construction often comes to a town's attention only after an unhappy neighbor alerts the town.

As a reminder, legal professionals DO NOT verify technical building permits.

The strong recommendation is for the seller to resolve all building permit issues before a sale completes, even if this process inevitably delays the sale. The buyer should expect a sworn lawful state report... and be willing to pay for it if necessary.

Other building certificates required or useful for a property sale in Italy

Energy rating certificate, "Attestato di Prestazione Energetica (APE)"

The seller must provide the buyer with a valid copy of the energy rating certificate as soon as a buyer considers purchasing a property. The energy certificate must be specified in the deed contract and attached to it. While the intentions behind the energy audit are excellent, the market rate for energy audits is very low relative to the work required for a professional audit. Consequently there is not a lot of rigor which goes into performing energy audits. Only certificates for new buildings are generally reliable. Energy certificates expire after 10 years; sooner if changes are made to one of the parameters which determines the certificate's rating, e.g. if a heating system is replaced.

Systems certificates (Dichiarazione di Conformità dell'Impianto alla Regola dell'Arte, DiCo)

Italy introduced a scheme for certifying the installation and significant modification of systems (e.g. heating and cooling, plumbing, electricity, fire protection, lifts, tv...) in 1990 (L. 46/1990) ¹⁰, updated in 2008 (D.M. 37/2008) ¹¹. In the past certificates were not always issued as much work was done "informally", without invoices. At the time of a sale, a seller may declare a system does not meet standards and the onus will be on the buyer to bring the system up to current standards. It is in theory possible to substitute a conformity certificate with a responsibility certificate (dichiarazione di rispondenza, DiRi) for systems installed between 1990 and 2008, however in practice few technical professionals will want to take responsibility for work they didn't perform themselves. DiRi is more realistically a solution for a technical professional to certify prior work he or she did.

Occupancy / habitability (agibilità) certificate

A home in Italy must meet minimum "health and safety" oriented requirements, e.g. have ceiling heights of at least 2.7 meters in living areas, must have a bathroom (2.4 m height) with a window, etc. A builder will certify a building meets minimum residential requirements when construction is completed or when significant work modifies an existing building. Begun as a health oriented directive in 1934, currently certificates are required for work done after 30/6/2002 (as specified by d.P.R. 380/2001 ¹² & D.L. 222 / 2016 ¹³) and only after this date. Agibilità has as perquisites the energy audit APE, systems certificates and, since 11 December 2016, building permit compliance (conformità urbanistica). Certificates are not required for a property sale, but should be mentioned in a deed if issued after 30/6/2002. Certificates issued before this date are effectively meaningless as the laws they were issued under were abolished. Substantive adherence to minimum residential standards is required even in the absence of an agibilità certificate.

This article is intended to provide a general overview of this topic; it does not substitute a review of a specific situation by a qualified technical professional nor does it necessarily reflect current law.

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The above is offered as general guidance without warranty; changes may have occurred since it was written. Do consult with appropriate qualified professionals regarding your specific situation before making any real estate purchase.

About the author

Sean Michael Carlos grew up in Rhode Island, USA. He studied in the US, UK and Germany before settling in Italy where he has lived for over twenty-five years, in three different regions.

Sean is a licensed real estate agent in Italy with over 10 years experience in the sector and would love to hear from you if you are looking to buy or sell property in Italy.