We live in a period in which the idea of stability is beginning to dominate the majority of society; we are witnessing the development of the real estate market, and may well face the prospect of acquiring various properties. But to what extent do we understand what we sign, and how can we protect our interests in the event of a dispute between the contracting parties?
To avoid initiating contentious proceedings, incurring excessive expenses and the risk of obtaining an unfavourable judgment, the most effective option is to consult specialists in the field, who can provide advice and assistance throughout the entire process.
1. Collecting information on the ownership history and legal status of the property
A first operation that must be carried out before deciding to purchase a property is the consultation of all documents accessible to the buyer, in order to discover any risks to which they may be exposed after the contract is concluded.
The Land Registry Extract is a useful and readily available instrument. The prospective buyer can verify whether the seller is the owner of the property in question, whether there are any disputes or charges (such as easements, mortgages or attachments), and can become aware of any registered bilateral promise of sale-purchase or inalienability clause.
The buyer must also ensure the existence and limits recorded in the urban planning certificate and the building permit, since the property may be located in an area designated as green space (where construction is prohibited) or a protected (built) area (which imposes servitudes relating to demolition, modification, functionality, distances, height, expression, materials, finishes, etc.).
Particular attention must be paid to the tax clearance certificate and the certificate issued by the owners' association, attesting that all debts relating to the property have been paid up to date.
2. Which contract clauses require careful attention?
It frequently happens that, due to a lack of legal knowledge or the seller's abuse of position, the buyer accepts unfavourable clauses without understanding their content or being able to anticipate the consequences.
Regarding the time, currency and applicable exchange rate for payment, these must be specified in detail in the contract, as the buyer may face the risk of being required to make payment immediately after delivery of the property or in a different currency than that verbally agreed.
Another important clause is that by which the seller can reduce their liability for hidden defects, stating they will not be liable for hidden defects known at the time of sale. While such a clause would be null and void, demonstrating this and obtaining damages requires court proceedings that can take considerable time.
The limitation of the seller's liability may also apply to the warranty against eviction, meaning the situation in which the buyer's possession and use of the property is disturbed by a third party claiming rights over it. Where the buyer assumes the risk of eviction occurring, the seller will not even be required to refund the price.
To provide additional protection to the buyer's interests, it is useful to insert a penalty clause, at as high a sum as possible. Through this, the performance to which the defaulting party will be obliged in the event of non-performance of obligations is established. The benefit of this provision is that it is not necessary to prove the extent of the damage suffered as a result of the other party's failure to fulfil their obligation.
3. The form of concluding a property sale contract
It is important to note that anyone wishing to purchase a property (land, apartment, house, or other fixed construction) must always conclude the contract in authenticated form — before a notary. This is a validity condition of the act; failure to comply renders the act null and void, meaning ownership has never transferred to the buyer — a situation that may arise even several years after the moment of "sale".
Conclusions
To eliminate the risks that may arise following the conclusion of property transfer contracts, we recommend that the prospective owner obtain as much information as possible about the history of the property and carefully analyse the contractual clauses in order to identify those provisions that may give rise to litigation.
Consulting the expertise of a professional can only reduce the risks associated with the transaction or, at the very least, help in making an informed decision.
