Further protection for the buyer: the legitimate status of the property
The “certification of the legitimate status of the building” is an additional protection for the buyers because confirms the absence of town planning violations or the potential existence of construction or executive tolerances.
Article 34 bis of the Consolidated Building Act (TEU), introduced by the recent Law 120/2020, offers additional protection to buyers by allowing the inclusion of a crucial certification called the “certification of the legitimate status of the building” in deeds of transfer, division, or real rights establishment. This certification is issued by a qualified technician and confirms the absence of town planning violations or the potential existence of construction or executive tolerances.
It is important to note that the legitimate status certification does not replace the building permit. Instead, it verifies that the construction of the building adhered to the requirements specified in the building permits, with the possibility of minor construction tolerances (e.g., deviations within 2% of the permitted height or volume) or executive variations (e.g., geometric irregularities, changes in finishes, different placement of systems or internal works). These discrepancies do not qualify as major town planning violations, which would render the transfer null and impede the marketability of the property from a legal standpoint. They also do not fall under minor abuses, which could result in administrative sanctions, the inability to benefit from tax incentives, and the potential for contract termination or price reduction, as well as compensation for damages.
The purpose of the legitimate status certification is threefold. Firstly, it serves to document that the property was constructed in accordance with the original building permit, possibly supplemented by subsequent authorizations for further modifications. Secondly, it provides evidence that even if the property was built without a permit, it complies with town planning regulations as substantiated by appropriate documentation. Lastly, it establishes a document, in cases where the original permit is lost or destroyed, that certifies the building’s compliance with current legislation when accompanied by suitable supporting materials.
Legal experts widely agree that the buyer has a legitimate right to obtain the sworn declaration of legitimate status from the seller as per Article 34 bis, paragraph 3 of the TEU, based on Article 1477 of the Civil Code. This document can be considered one of the items that the seller should deliver to the buyer.
The introduction of the “legitimate status of the building” which certifies its compliance with town planning regulations, will now be an important part of the documentation required by municipal offices for new construction projects, when submitting new applications or building notices, but it can also be attached to notarized transfer or division deeds. This significant new tool is crucial for ensuring and safeguarding the interests of the buyer and should be utilized accordingly.
by Fabio Pucciarelli
