Due Diligence: What Sinks a Purchase

Picture the second visit. The light is good, the stone is warm, and the owner has put coffee out on the terrace. Nothing about the place suggests a difficulty. Whatever is written in the registers and deeds cannot be seen from there.

Why can a house that looks sound still run into trouble?

Older Tuscan farmhouses were often extended, divided or altered over decades, sometimes informally. What stands on the ground may then differ from two records at once: the one kept at the Catasto, the cadastral registry, and the building file held by the municipality, which records what was authorised. These are two separate questions, and each has its own remedy.

A cadastral mismatch means that the cadastral plan and the cadastral category no longer match the building. The remedy is a cadastral update, a DOCFA filing prepared by a technician. It changes the registry, not the planning status.

A planning mismatch means that the building differs from its permits. Possible remedies include the accertamento di conformità and the tolerance rules of the building code, which the 2024 “Salva Casa” decree amended.^[1][2] The code sets a general tolerance of 2%, and a graded tolerance of between 2% and 6% by surface area for works completed by 24 May 2024.^[2] These thresholds are summarised here for orientation only and should be confirmed by a lawyer. The stato legittimo, or legitimate state, of a property is established from the original permit and the later titles.^[3]

What must the deed say about the building?

The law ties the validity of the deed to specific statements, not to a general inspection. There are two sets of them, one for each record.

For the cadastre, the deed must state the cadastral identification and the reference to the plans deposited there, together with the titleholders’ declaration that the plans match the current state, or a technician’s attestation. If these are missing, the deed is void.^[4] The notary identifies the cadastral titleholders and checks them against the property registers.^[4] A missing statement can in some cases be cured by a confirming deed, unless it was due to missing or non-conforming plans.^[5]

For the building, the rule covers anything begun after 17 March 1985: the deed must state the details of the building permit, on the seller’s declaration.^[6] Otherwise it is void and cannot be concluded.^[6] Italy’s Court of Cassation, sitting in Joint Sections, has called this planning nullity “textual”: the deed is valid if it states a real title that can be referred to, whatever the building’s actual conformity.^[7] Nullity arises when the title is missing, for example for an autonomous unit with no permit.^[7] The Court has held the cadastral nullity to be formal.^[8]

A planning or cadastral irregularity does not always prevent a deed from being signed. It can still give the buyer a claim against the seller, cost money to regularise, and affect a mortgage, letting or a later sale. The notary is not required to inspect the building, but has a duty to inform the parties. Regularisation takes time and money, and both are easier to assess before a preliminary contract is signed than at the notary’s table.

One more document deserves a mention. Since the reform of the building code’s article on the subject, habitability is certified by the segnalazione certificata di agibilità (SCA).^[9] According to a notarial paper, its absence does not itself void the deed, but it can amount to a breach by the seller, and the notary must inform the parties.^[10]

What counts as genuinely illegal building work?

This is a different and more serious category from a cadastral mismatch. It means construction carried out without a permit, or in substantial deviation from it, and not covered by a condono, a building amnesty. Depending on its nature, it can lead to a demolition order or a fine, and it can make the property very difficult to sell until it is resolved.

Whether an irregularity can be regularised, and on what terms, depends on the law in force when the work was done and on the current rules. That assessment is normally made by a technician and a lawyer together. Each property has its own file, and the thresholds and case law mentioned here change.

What happens when the owner has died and there are several heirs?

Property can remain in comunione ereditaria, joint ownership among several heirs, for years after an owner’s death. Where the property is co-owned by the heirs, all of them must sign the sale.^[11] The heirs’ acceptance of the inheritance must also be transcribed in the property registers, so that the chain of title to the seller is continuous.^[12]

A missing signature, an heir who cannot be reached, or a chain of title that has not been transcribed can stop or delay a transaction, including late in the process. Checking that the person signing the preliminary contract has the power to sell the whole property is a basic step in any purchase.

How do liens, boundaries and rights of way come into it?

A property can carry a mortgage, an attachment (pignoramento) or another charge from a current or former owner. Before the deed, the notary checks the property registers for mortgages, attachments and pre-emption rights. A charge that is found must be cancelled, or its cancellation secured, at or before the deed. One way to do this is for the notary to hold part of the price and use it to pay off the charge. The article on the true cost of buying covers notary escrow.

Boundaries and access are a related question. Rural properties often lack boundaries that match a modern survey. Access over a shared or third-party track rests on a documented right of way, a servitù, which is checked in the title.

Agricultural land adds a further layer. Its sale can be subject to a statutory right of pre-emption. A tenant farmer who has cultivated the land for the required time holds one.^[13] The owner must notify the tenant of the sale terms by registered letter, and the tenant has 30 days to respond.^[13] If the notice is not given, the tenant can redeem the land within one year of the transcription of the deed.^[13] Where there is no tenant, a neighbouring coltivatore diretto, a farmer who works the land personally, can hold a similar right, and since a 2016 law so can an IAP, a professional farming entrepreneur.^[14] Whether any of this applies depends on the facts.

Why do these checks come before the offer?

Each of these issues is cheaper to identify before a preliminary contract is signed than after. The checks set out above are normally carried out by a lawyer and a technician, using the title deeds, the cadastral documents, the municipal building file and the property registers. Their purpose is to establish what the buyer would actually be acquiring, and on what terms.