Who Is Actually on Your Side When You Buy in Italy?
In a standard Italian property purchase, each professional has a defined role, and none of them is there to represent the buyer alone. The estate agent is a mediator, paid by the parties. The notary is a public official. Whether anyone in the process acts only for the buyer depends on who the buyer has engaged.
Picture the first viewing. A farmhouse in the hills, a long drive up a gravel track, an agent who knows the house and the owner. The agent is courteous and well informed. Then comes a question that belongs to that moment, even if nobody asks it aloud: whom does the agent work for?
Who does an estate agent in Italy actually work for?
In law, an estate agent is not the representative of either side. In Italy the estate agent, whom an American would call a real estate agent or broker, is legally a mediatore, a mediator. The word has a precise meaning. A mediator brings two or more parties together so that they can conclude a deal, and is tied to none of them by collaboration, dependence or representation.[1] A mediator is therefore not the buyer’s representative.
The agent is paid by commission: the law gives the mediator a commission from each of the parties when the deal is concluded through his work.[2] The commission is owed by both sides, then, and not only by the seller. How much it is, and how it is shared, is settled by agreement, by professional tariffs or by local usage; failing all three, a court decides what is fair.[2] The law fixes no percentage.
There is a variant. A mediator may work on the instruction of one party only, an arrangement often called atypical mediation. Italy’s Court of Cassation has made clear that such a mediator owes the same duties of good faith and information.[3] Italian law and case law on mediation change over time.
What is the agent obliged to tell you?
Here the law is plain: an agent must tell what he knows. Whatever he is aware of that bears on the assessment and the safety of the deal, and that might influence its conclusion, has to be passed on to the parties.[4]
Italy’s Court of Cassation has set the standard high. The duty covers what the agent knew, and also what he should have known with the diligence expected of his profession.[5] The court’s examples are practical ones: co-ownership, pre-emption rights, administrative authorisations, entries and transcriptions in the registers, and the seller’s title.[5] The consequences can be real. An agent who fails to report a planning irregularity he knew about may have to pay damages, and may lose his commission.[6]
The duty has an edge, though. The obligation is to tell what he knows or ought to know, and not to vouch for what he has not checked. A full investigation is not part of it, unless he has promised one.[5]
What do the notary and the lawyer do?
The agent is one of several people around the table, and the others have different roles.
The notary is the second. The notaio is a public official. The notary checks that the transaction is lawful, carries out the anti-money-laundering checks and verifies mortgages, attachments and pre-emption rights.[7] What the notary does not do is take a side: the notary acts for neither party as an advocate.
A buyer who wants someone to read the contracts and the title can engage a lawyer. That is a separate choice, and it belongs to the buyer, like every decision about what to buy, at what price and on what terms.
What is a buyer’s advisor, and how is the role different?
There is a further figure, engaged by the buyer alone: the buyer’s advisor. He or she is engaged and paid by the buyer to assist with a purchase. The role is comparable in purpose to a buyer’s agent in the United States, although the legal classification differs from country to country. The difference from the mediator is the point of the role. An advisor acts on the instruction of one party. How any particular activity is classified depends on what the advisor actually does, and that is a question for a lawyer.
The fee is agreed with the buyer under the general rules on professional services, and an advisor from a regulated profession must give a written estimate when the engagement is given.[8] It is a further cost for the buyer, separate from any commission owed to an agency. And an advisor adds to the team without replacing anyone: not the agent, where a property is marketed through one; not the notary; not the lawyer.
Does “zero commission for the buyer” settle the question?
It is an appealing phrase, and it answers a different question. It says who pays the agent. It does not say whom the agent acts for. The commission can be owed by both parties, and arrangements differ from one transaction to another. Who bears the agent’s commission is one matter. Who has instructed whom, and who is paying whom, is another, and the answer is in the agreements themselves.
About the service described in this article
The Tuscan is a private property office in Tuscany that acts for buyers. It holds no inventory and accepts no commission from sellers.
Frequently Asked Questions
- Is an Italian estate agent the same as a buyer's agent?
- No. An Italian estate agent is a mediator under art. 1754 of the Civil Code, not tied to any party by a relationship of collaboration, dependence or representation, and is entitled to commission from each party (art. 1755).[1][2] Italian law also recognises mediation on the instruction of one party (“atypical mediation”), to which the Court of Cassation applies the same duties of good faith and information.[3] A buyer’s advisor is engaged and paid by the buyer.
- Who pays the agent's commission in a purchase in Italy?
- Art. 1755 entitles the mediator to commission from each party.[2] The amount and how it is shared are set by agreement, tariffs or usage, or by the court.[2] There is no fixed legal percentage.
- When does the agent's commission fall due?
- When the deal is concluded through the mediator’s intervention. According to Cass. 11371/2023, that is when a legal bond arises between the parties that allows each to seek performance of the contract or damages. Depending on the documents, this can be before the final deed.[3] The agency agreement can contain further terms.
- Does the estate agent check the property's legal status?
- Not as a general obligation. An agent must report circumstances he knows, or should know with professional diligence, that affect the evaluation and safety of the deal (art. 1759).[4][5] He is not required, without a specific commitment, to carry out technical-legal investigations, and must not give information he has not verified.[5] Title, boundaries and building compliance are normally checked by the notary, a lawyer and a technician.
- Can a buyer engage their own adviser in addition to an agent?
- Yes. A buyer can engage a lawyer, a technician or another adviser. The adviser’s fee is agreed separately and is distinct from any agency commission.
Notes to the article
- Civil Code art. 1754 (definition of the mediator). ↩︎
- Civil Code art. 1755 (commission from each party; amount set by agreement, professional tariffs or local usage and, failing these, by the court in equity). ↩︎
- Atypical mediation and the duties of good faith and information: Cass. 15577/2022; Cass. 11371/2023 (para. 4.5.2: the commission falls due when the parties are bound by a legal bond that allows each to seek performance or damages). ↩︎
- Civil Code art. 1759. ↩︎
- Cass. 15577/2022; Cass. 11371/2023, paras 4.2 and 4.5.3 (circumstances known or knowable with the professional diligence of the category; examples of information including co-ownership, pre-emption and options, administrative authorisations, entries and transcriptions on the property, the seller’s title; no technical-legal investigations without a specific commitment). ↩︎
- Cass. 15577/2022; Cass. 11371/2023 (liability in damages and loss of commission for known planning irregularities). ↩︎
- Consiglio Nazionale del Notariato. ↩︎
- Art. 9 of Decree-Law 1/2012, in force in this form since 29 August 2017, which applies to regulated professions. ↩︎
- Civil Code, arts 1754 ff. ↩︎
Sources
Last reviewed . Official and primary sources consulted; names are given in their original language.