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Buying and selling property: Reasonable time for the seller to remedy construction defects

Real estate law

Buying and selling property: Reasonable time for the seller to remedy construction defects

In its decision no. 18051/2023, the Italian Supreme Court ruled out good faith in cases where the buyer does not give the seller time to restore the conformity of the property.

As the case law has clarified on several occasions (decision of the Italian Supreme Court  no. 34211 of 21 November 2022), the lack of ‘agibilità’ (usability) does not affect the saleability of the property, but only if this defect is the subject of a specific agreement between the parties. In the absence of a contractual exception, the seller is obliged to hand over the property with a certificate of usability. Before the cancellation of the contract is declared, it must be examined whether the lack of the certificate of habitability and the unauthorised extensions have impaired the marketability of the property. According to the judges, if it turns out during the process that the property has all the features that allow it to be used properly and the structural deviations from the original project have been rectified, the preliminary purchase agreement remains valid.

But that's not all, because according to the Supreme Court, even if the construction defects have not yet been rectified, the buyer must allow the seller the time necessary to carry out the rectification work. Otherwise, the buyer 's behaviour is contrary to good faith.

It can be concluded from this that the established existence of construction defects does not automatically constitute a sufficient condition for establishing a ‘serious’ breach of contract on the part of the seller. On the contrary, the subjective and objective positions of the other party must always be assessed and, above all, a second chance must be given by granting a period of time to remedy the situation.