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PostPosted: June 28th, 2011, 4:29 pm 
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Joined: July 27th, 2008, 10:30 am
Posts: 48
Dear Members,

we are aware that many of you are currently being called to complete in various developments. For such reason we believe it is in your interest reading an article drafted by our law firm in reference with the certificate of habitability:
The Certificate of Habitability certifies the suitability of a residential property to be habitable. It is issued by the competent municipal offices following verification of conditions of safety, hygiene, solidity, healthiness of the property and its systems. According to part of the jurisprudence prior to issue the certificate of habitability the competent authorities should also verify the compliance of the building with planning permission.

The case law of the Supreme Court is unanimous in stating that in real estate transactions the certificate of habitability is one of the documents that the vendor must deliver to the buyer before completion. As a matter of fact the buyer has full right to verify that the property is suitable to satisfy his legitimate interest, that is the usability and marketability of the property. The above mentioned certificate can be considered as an essential requirement of the building because having direct effects on the legal use of the property as foreseen in the contract.

In absence of different contractual agreements, the responsibility to provide the certificate of habitability belongs to the vendor. In case of delay or failure in the delivery of such certificate we are in a clear case of non execution of a contractual obligation (breach of contract). A recent decision of the Supreme Court states that “the vendor of a property intended for residential use has the duty to deliver to the buyer the certificate of habitability without which the property is unmarketable (Cass. 23 of January 2009, n. 1701).

In case of absence of certificate of habitability the property can nevertheless be transferred with a notarial deed of sale but only with the buyer’s explicit consent because the property will not be legally habitable. Verifying the presence of the certificate of habitability and informing buyers of the risks connected in completing a real estate transaction in absence of such important legal document before completion should certainly be part of the legal due diligence.

Avv. Giandomenico De Tullio


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PostPosted: June 28th, 2011, 5:31 pm 
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Joined: June 5th, 2007, 4:36 pm
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Location: Italy
detulliolawfirm wrote:
In case of absence of certificate of habitability the property can nevertheless be transferred with a notarial deed of sale but only with the buyer’s explicit consent because the property will not be legally habitable.


A common solution adopted by many notaries in areas where councils are slow to issue the required documentation is to also add a clause that any expenses to make the property meet the requirements are to be fronted by the vendor.

Dennis.


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PostPosted: June 28th, 2011, 7:38 pm 
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Shoud the certificate have been issued where the electricity supply is still hooked up the the builders supply. Also where the lift are not functioning and there are no individual water meters?


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PostPosted: June 28th, 2011, 10:49 pm 
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Joined: August 1st, 2010, 7:41 pm
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Sorry Dennis, but I prefer the solution in the initial post:
If a certificate of habitability is not made available to the purchaser at the point of completion in the notary office, you:
1) abort the completion
2) instruct your solicitor, with all those present, to sue the vendor for breach of contract
3) you leave the office


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PostPosted: June 29th, 2011, 8:07 am 
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Location: Italy
You must be joking - italian courts are no faster than the councils, it would take years and I don't know the outcome for certain. Of course if you are not happy to complete for other reasons a delayed certificate me be the drop.

Fortunately most (of our) clients are very happy to wait a few months until the slow local council have issued the paperwork. With the clause as described above the interests of both parties are perfectly.

As for electricity supply, the builders depend on Enel and, from our experience, you need to apply 6 to 12 month prior to planned completion and nag them on a weekly basis to have a chance to get it all done in time. In cases where they (enel) decide a new substation is required the time and cost are very disappointing, but it will not impair the issuing of the certificate.

The certificate of habitability though is mostly concerned with respect of building regulations, minimum sizes heights, insulation and ventilation. A certificate of conformity Of the electrical installation is also requires as is an energy consumption certificate.

Dennis.


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PostPosted: June 29th, 2011, 11:34 am 
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Dennis - but the alternative solution relies on a written clause in a notary act - many buyers have already realised the unenforceability of the legal written word. Consider, in this scenario, that the vendor (who has now received all the money he is ever going to get for this sale) has been given permission, in this legal system, to sell an illegal asset to a purchaser who has now taken possession of a worthless property (can't be sold). Do we really expect the vendor will, at some point in the future, offer to spend money [willingly and in a timely manner] on rectification work - where is that incentive?

We might also imagine that the "vendor" is a company created specifically for the development of a particular building project - when that project is complete, and the vendor has received all monies, and purchasers are in possession of properties with, at best, dubious worth, can we expect the "vendor" to remain in existence? I would now question the value of that clause in the notary act - a condition of responsibility to a now [missing] vendor.

This alternative solution requires the purchaser to “fire all their bullets” and at which point they have no power, influence or leverage against the vendor. By legally holding back on the completion the initial solution maintains at least some power for the purchaser, and might shake up into action those who should be doing their job - vendor, councils and solicitors.

There are many stories on this forum where the purchaser, having paid money, feels helpless in the process that follows and part of a system that seems overly biased toward the seller. But in this market, the buyer should be in control and should only take actions that maintain that balance to their advantage - in effect, they should become the bully (and stop being bullied) - and legally keeping significant funds back from the vendor is certainly one powerful way of doing that. We might then see an inept system reformed by those it starts to hurt - and if a certificate is necessary for completion then it is issued, and on time.


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PostPosted: June 29th, 2011, 4:18 pm 
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Tim, of course the certificate SHOULD be there at time of completion.

You need to wait sometimes up to 3 - 6 months for the certificate to be issued. Not because the building did not comply, simply because the council is not as efficient as it could be.

Thankfully our clients agreed to wait rather than sue.

Dennis


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PostPosted: September 4th, 2011, 5:06 pm 
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I do not have a certificate of habitability - 2 years after completion and I have paid all my money -is my property worthless and canI sell it ?
How do I stand legally?
No one else on the development has had one issued either-and I have asked the builder many times with no success.


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PostPosted: September 5th, 2011, 9:20 am 
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A recent judgment of the Italian Supreme Court (Cass. Sez. III, 23 January 2009, n.1701) defines the certificate of habitability as “an essential legal requirement for the legitimate enjoyment and marketability of the property”. Such definition should not be interpreted in the sense that the absence of the certificate determines a legal limitation to the circulation of the property. The certificate of habitability does not represent a legal condition for the validity of the notarial deed of sale but, having effects on the capacity of the sold property to perform its social and economic function, it represents an element which contributes to complete its identity.
The absence of the certificate of habitability, making the immovable asset inadequate for its natural use, makes in practical terms impossible the fulfillment of the needs which have originally led the buyer to sign the contract, determining as a result an anti-economic transaction.
We should talk of inability to be traded in economic rather than in legal terms.
The absence of the certificate of habitability determines the unsuitability of the object of the contract to fulfill the use for which it was originally purchased.
This means that the ownership of the property can be legally transferred but the failed release of the certificate of habitability, independently from the motivation, implies a default of the vendor to respect his contractual obligation towards the buyer (Supreme Court 19 December 2000, n.15969).
Therefore the parties are free to close a real estate transaction in absence of the certificate of habitability but it is necessary that the buyer is aware of such circumstance. This implies that already in the preliminary contract the building should be declared as not habitable.

Avv. Giandomenico De Tullio
http://www.detulliolawfirm.com


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PostPosted: September 5th, 2011, 11:59 am 
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Joined: September 12th, 2009, 2:49 pm
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Which in plain speak means???????? Can you just tell us if the property can be sold or not and if not what will be required to do so and how we go about it! What are the pratical implications of the seller and of the buyer where no certificate has been provided to the current owners..

Can you also tell us how on earth so many buyers were allowed to complete without one when the lawyers are supposed to represent our best interests??.


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PostPosted: September 5th, 2011, 4:25 pm 
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Joined: July 27th, 2008, 10:30 am
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Sunflower I believe my previous post answers your questions;
A property lacking certificate of habitability can be legally transferred.
However, considering that such property cannot fulfill its natural use (meaning being used as a residential dwelling in compliance with the law) circumstance which has a significant impact on the price, any potential buyer must be duly infomed in the preliminary contract.
Meaning that, should you decide to sell your property, you will have the responsibility to inform any potential buyer that you are selling a property lacking certificate of habitability.
Obviously if in the final deed of sale the builder promised to give you the certificate of habitability and he did not respect his contractual obligation, you will be entitled to take legal action against him in order to be compensated for the damage suffered.
I assume you should address the final question to your appointed legal representation rather than to me.

Regards

Avv. Giandomenico De Tullio
http://www.detulliolawfirm.com


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PostPosted: September 5th, 2011, 4:50 pm 
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Dear Sir
Thank you for the information -it is most informative and useful.


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