Why should I Hire a Lawyer if there is a Real Estate Agent or a Mediator involved in my House Purchase?
One of the reason is because the Real Estate Agent is not responsible by law for legal issues or urban verifications in the property purchase in Italy.
The Real Estate Agent’s responsibility in Italy is limited to the intermediation work linking the buyer and the seller. This task will be carried out through the normal diligence which simple consists in the performance of aforementioned service referred to a broker with medium capacity.
Therefore, he is not responsible if in the closing phase of the notarial deed he didn’t informed and alerted the buyer on the fact that the chosen property was subject to urban issues and that issue wasn’t allowing its marketability.
The damages requested to the mediator were huge, in addition to the down payment (Caparra) also the damage for the non-purchase of another property that would have been optioned if the promissory buyer had known from the first moment the urban differences.
Therefore, the mediator has the obligation to inform the parties of the circumstances known to him, all those things of which he became aware in carrying out the assignment, and also of all the circumstances that could have been acquired by a mediator with only medium professional skills, with the use of normal diligence. Definitely, not legal skills or obligations.
However, nothing can be claimed about the responsibility of the Real Estate Agent with regards to the control and verification of the mortgage deeds and the urban situation.
The Italian Supreme Court (Corte di Cassazione) has repeatedly reiterated that in the ordinary diligence is not required that the mediator does any of the technical-legal investigations, such as, for example:
- the mortgage and land registry surveys;
- the verification of the urban situation;
- the assessment and the check in the Real Estate Registers;
- the freedom of the property subject to negotiation from transcripts or prejudicial registrations;
- or even the urban planning examination.
In this regard, the same Court refers to a very long jurisprudence composed of dozens of sentences that have affirmed the same principle.
Therefore, the Court condemned the promissory purchasers who had turned to the Real Estate Agent to be compensated for damages above mentioned because of the differences found they could not be part of that level of elementary knowability for which the estate agent would not could provide justifications based on his personal lack of knowledge.
Different fate would have had in the case in which the mediator received an express assignment from the promissory buyer (with specific and more expensive remuneration, different from the commission) to carry out mortgage-cadastral or urban planning surveys, his obligation to fulfill the task is clearly outlined, and he could have civil responsibility in the hypothesis that the job was not well done.
It follows that if Real Estate Agents do not check the urban situation, they have no responsibility whatsoever, except that they have failed to communicate the information known, or in any case elementary diligence, while if the Estate Agents received an express assignment with specific and more expensive remuneration he has to provide information of a mortgage-cadastral or urbanistic nature assuming the particular responsibilities of the case, but still he is not a legal professional.
In conclusion, prudence requires to abstain from reckless steps and to delegate everything related to your real estate transactions in Italy to a professional Trusted Lawyer.