When purchasing property directly from a developer or construction company in Sardinia, whether the property is still under construction, nearing completion, or newly built, the legal framework governing the transaction differs substantially from purchasing an existing property from a private seller. The developer is not merely transferring an asset that already exists but rather is engaged in a construction contract that creates specific legal obligations and protections for the buyer, and understanding these protections is essential for managing the risks inherent in purchasing property that may not yet be physically complete or fully habitable.
International buyers purchasing off-plan property in Sardinia, where they are committing to purchase a home based on architectural plans, renderings, and promises rather than on a completed physical structure, face particular importance in understanding what legal guarantees protect their deposit, what protections cover structural defects discovered after closing, and what recourse exists if the developer fails to complete the project as specified or if serious construction defects emerge months or years after the notarial deed.
The structure of these protections—encompassing mandatory guarantees, financial security requirements, statutory warranties, and contractual remedies—creates a legal framework substantially more protective for buyers than exists in the real estate resale market, but only if buyers and their legal advisors understand the framework and ensure that it is properly invoked and maintained throughout the transaction.
The Distinction Between Off-Plan, Under Construction and Newly Built Properties
When a developer offers property for sale, the property can exist in several different legal and physical states, each with different implications for the buyer’s legal protections and timeline to occupancy.
Off-plan property (spesso chiamato “immobile su carta”) refers to property that exists only as architectural plans and specifications at the time of purchase. The buyer is committing to purchase a property that does not yet physically exist, based entirely on the accuracy of those plans and the developer’s commitment and financial capacity to complete it. The buyer typically signs a reservation agreement or preliminary contract, pays an initial deposit, and continues to pay installments as the construction progresses through defined stages, with the final payment due at or near the notarial deed of transfer.
Under-construction property refers to a project where construction is underway but not yet complete. The buyer may be purchasing at various stages of construction—from initial foundation work through final finishes—with the same installment structure as off-plan property, and with the same dependence on the developer’s ability to complete the project according to schedule and specifications.
Newly built or recently completed property refers to a project where construction is substantially complete, the building has received final inspections and approvals from municipal authorities, and the property is ready or nearly ready for occupancy. The developer may sell these properties either through the project’s completion phase (still technically as developer sales, with VAT treatment) or after completion, depending on timing and the developer’s intentions.
The legal framework protecting the buyer applies across all three categories, but the practical implementation and the timeline for occupancy and final completion differ substantially.
Financial Protection: The Fideiussione and Mandatory Escrow
When a buyer signs a preliminary contract to purchase off-plan or under-construction property from a developer, the buyer typically begins paying installments before construction is complete and before the notarial deed transferring ownership is executed. These advance payments—often representing ten to fifty percent or more of the total purchase price—create a financial exposure for the buyer, because if the developer becomes insolvent, enters bankruptcy, or abandons the project before completion, the buyer risks losing the deposit entirely without having obtained legal ownership of the land or the partially constructed building.
To protect buyers in this situation, Italian law requires that developers provide a fideiussione, which is a bank guarantee or surety bond that secures the developer’s obligation to refund advance payments if the developer fails to complete the purchase as promised. The fideiussione must be issued by a qualified financial institution and must be maintained throughout the period during which the buyer is making installment payments.
Additionally, many developers (and required by some regional regulations and by mortgage lenders) place buyer payments in escrow accounts held by the notary or by qualified escrow agents, meaning that the funds are held separately and are released to the developer only as construction milestones are completed and verified. This escrow structure provides protection because the buyer’s money is not in the developer’s operating account and is therefore not at risk if the developer encounters financial difficulty.
The presence and the terms of both the fideiussione and any escrow arrangement should be explicitly stated in the preliminary contract, and the buyer should verify before signing that these protections are actually in place and that they will remain in force throughout the construction period.
When a developer fails to maintain the fideiussione or when escrow arrangements are not properly established or are bypassed, the buyer faces substantial unprotected financial exposure, and disputes over refund of payments in case of project abandonment can extend for years through litigation. This is why having a lawyer verify and enforce these financial protections is essential when purchasing off-plan property.
The Decennial Warranty: What It Covers and What It Requires
At the moment of transfer of ownership (the notarial deed closing), the developer is legally required to provide the buyer with documentation of a decennial warranty (polizza decennale postuma), which is a ten-year insurance policy that covers defects in the structural elements and the fundamental stability of the building that emerge after the property is completed and transferred to the buyer.
The decennial warranty covers significant structural defects in the main building elements, including the foundation, load-bearing walls, roof structure, internal floor structures (solai), structural elements of stairways and ramps, and in some cases mechanical systems and elements essential to the structural integrity of the building. The policy provides coverage for repair or replacement of these defective elements if the defect is discovered within ten years of the transfer of ownership, and the cost of repair is substantial and would not be economically feasible for the individual owner to absorb.
The decennial warranty does not cover minor defects, cosmetic issues, or problems in non-structural elements such as plumbing fixtures, electrical appliances, heating systems, or interior finishes, unless these elements are directly related to a structural deficiency. The policy also does not cover damage caused by normal wear and tear, improper maintenance, or modifications made by the owner after transfer.
The decennial warranty is mandatory for new construction sold by developers, and the developer must transfer the policy documentation to the buyer at closing. The cost of this insurance policy is typically included in the purchase price or is a separate cost negotiated between the buyer and developer.
For a buyer to invoke the decennial warranty in case of structural problems, the buyer must provide written notice to the insurer of the defect within specified timeframes (typically before the defect causes additional damage or becomes substantially worse) and must allow the insurer to inspect and assess the damage. The insurer will then either repair the defect or provide compensation to the buyer for repair costs.
The decennial warranty is important protection for off-plan and newly built property purchases, but it is not a substitute for competent supervision during construction and for careful inspection and testing of the completed property before the buyer accepts it at closing. Structural defects that emerge years after closing are far more costly and complicated to remedy than defects discovered during construction or at the moment of transfer, and the insurance remedy may not fully compensate the buyer for the inconvenience, cost, and diminished enjoyment of the property that defects cause.
The Two-Year Warranty for Ordinary Defects and the Ten-Year Window for Structural Defects
Beyond the decennial insurance policy covering major structural defects, Italian law provides statutory warranties for defects in the property and in the work performed by the developer. These warranties give the buyer the right to demand remedies from the developer for defects discovered within specified time windows after the transfer of ownership.
For ordinary defects, meaning defects that do not rise to the level of structural problems but still render the property non-conforming with the contract specifications or unsuitable for its intended use, the buyer has two years from the transfer of ownership to provide written notice of the defect to the developer and to demand remedy. Ordinary defects might include doors or windows that do not operate properly, plumbing leaks, electrical malfunctions, finishes that do not match specifications, or heating systems that do not function as promised.
For substantial structural defects, meaning problems that affect the fundamental stability or integrity of the building and that would have been discoverable during proper inspection, the buyer has ten years from transfer to provide notice and to demand remedy, although after two years the developer’s obligation shifts from repair to monetary compensation rather than repair of the defect itself.
The distinction between two years and ten years is important because it means that structural problems discovered in year three through year ten require the buyer to accept monetary compensation equal to the diminution in property value caused by the defect, rather than to demand that the developer actually repair the problem. This creates an incentive for the developer to complete repairs within the first two years rather than allowing defects to persist and then compensating the buyer.
To invoke these warranties, the buyer must provide written notice to the developer of the defect, ideally with documentation or expert assessment of the nature and extent of the problem. The notice creates a record that the defect was discovered within the warranty period, and it initiates negotiation with the developer regarding remedy.
If the developer refuses to remedy the defect or to provide compensation, the buyer can bring legal action against the developer to enforce the warranty rights, but litigation is time-consuming, expensive, and uncertain in outcome, and many buyers prefer to negotiate a settlement rather than proceed through court.
For these reasons, having a lawyer involved at the moment of transfer and in the months following transfer to identify and document any apparent defects and to provide formal notice to the developer provides important protection and creates pressure on the developer to address problems cooperatively rather than allowing them to deteriorate or become more costly to remedy.
Apparent Defects vs. Hidden Defects: What You Must Check Before Accepting the Property
At the moment of the notarial deed closing, or at the moment when the buyer takes possession of the newly built property, the buyer has a limited window to identify apparent defects and to provide notice to the developer. Apparent defects are those that would be discoverable through normal inspection and that should be documented immediately upon taking possession, because if the buyer accepts the property without noting apparent defects, the buyer may lose the right to demand remedy.
Apparent defects might include visible cracks in walls or ceilings, doors or windows that do not close properly, visible plumbing or electrical problems, incomplete finishes, or paint that does not match the specifications. These defects should be documented with photographs, written description, and ideally with a professional survey or inspection report prepared by a geometra or architect, and formal notice of these defects should be provided to the developer immediately or within days of taking possession.
Hidden defects are those that are not visible upon normal inspection and that would not be discoverable without expert assessment or specialized testing. These might include structural movement or cracks beneath the foundation, water infiltration in walls or roof cavities, electrical or plumbing problems within walls, or defects in materials that become apparent only with time or with specialized testing. Hidden defects can be documented and claimed later, even months or years after taking possession, because the buyer was not required to discover them through ordinary inspection.
The distinction between apparent and hidden defects is important because accepting the property without documenting apparent defects can be interpreted as acceptance of those defects and as waiver of the right to demand remedy, whereas hidden defects can be claimed later as long as notice is provided within the applicable warranty period.
For buyers purchasing property they will not occupy immediately (common for international buyers purchasing vacation homes or investment properties), it is particularly important to arrange a professional inspection by a qualified geometra or architect immediately upon completion and before accepting the property, to document the condition and identify apparent defects that the developer should remedy before or immediately after the buyer takes possession.
Contractual Protections: Why Written Specifications Matter More Than Promises
Beyond the statutory protections provided by Italian law, the preliminary contract and the final sales contract (the deed prepared by the notary) contain specific terms defining what exactly the developer is obligated to deliver, when delivery will occur, what quality standards the work must meet, and what happens if the developer fails to meet those obligations.
A well-drafted preliminary contract for off-plan or under-construction property will include a detailed capitolato (specification document) or refer to explicit technical drawings and standards, defining the exact materials to be used, the finishes to be applied, the systems to be installed, and the quality standards to be met. The contract will also include a detailed cronoprogramma (construction schedule) specifying the timeline for construction phases, the date by which construction should be substantially complete, and the date by which the property will be transferred to the buyer.
The contract should include penalties for developer delay, meaning that if the developer fails to meet the construction schedule, the developer owes the buyer compensation for the breach of the timeline. These penalties are typically set at a daily or monthly rate and provide financial incentive for the developer to maintain the construction schedule.
The contract should explicitly state what happens if the developer makes material deviations from the specifications (such as using inferior materials, omitting promised finishes, or altering the layout), and whether the buyer has the right to accept the property with compensation for the deviation or to demand that the developer correct the deviation before the buyer accepts transfer.
For international buyers purchasing off-plan property in Sardinia, ensuring that the preliminary contract is written in English or that the buyer has an English translation of the contract, and having the contract reviewed by a lawyer familiar with both Italian real estate law and the buyer’s home country legal expectations, ensures that no crucial terms are misunderstood and that the buyer’s protections are explicitly defined and enforceable.
Many developers provide preliminary contracts in standard forms that heavily favor the developer, often including provisions that allow the developer to make material deviations from the specifications, to extend the construction timeline without penalty, or to pass through cost increases to the buyer. A lawyer reviewing the contract on behalf of the buyer can identify these unfavorable terms and can negotiate more balanced language before the buyer signs and becomes bound by those terms.
What Happens During Construction: Supervision, Inspections and Documentation
During the construction period, particularly for off-plan property where the buyer is not physically present in Sardinia to observe construction, maintaining oversight of the work and documenting the construction process provides important protection against defects and ensures that the work is proceeding according to specifications.
If the development is substantial and the buyer’s investment is large, engaging a local geometra or architect to conduct periodic site inspections and to document the construction progress in writing provides valuable oversight and creates a record of the work that was completed and how it was executed. These periodic inspections can identify deviations from specifications early in the process, while the developer may still be willing to correct them at lower cost than correcting them after the structure is complete.
For international buyers purchasing remotely, arranging periodic inspections and receiving written reports from a qualified professional ensures that the buyer is informed of the construction progress and can address concerns with the developer before the property is complete.
The developer should provide the buyer with periodic documentation of construction progress, including photographs, receipts for materials purchased and installed, inspection certificates from electricians and plumbers for systems installations, and final inspection certificates from municipal authorities confirming that the work complies with building codes and municipal regulations.
At the moment before the notarial deed transferring ownership, the buyer should conduct a final comprehensive inspection (collaudo) of the completed property to verify that the work is complete, that all systems are functional, and that the property meets the specifications in the contract. This final inspection should be documented in writing, with photographs or video, and should be reviewed by the buyer’s lawyer before the buyer accepts the property.
Special Considerations for International Buyers Purchasing Off-Plan
For international buyers who will not be physically present in Sardinia during construction, several specific arrangements are important to ensure that the buyer’s interests are protected throughout the transaction and at the moment of completion.
The preliminary contract should explicitly authorize a lawyer or representative of the buyer to act on the buyer’s behalf regarding inspections, communications with the developer, and decisions regarding acceptance of the property at completion. A written delegation of authority (procura) signed by the buyer authorizes the lawyer to represent the buyer’s interests and to make decisions regarding the property.
The buyer should ensure that all communications with the developer are in writing and that copies are maintained, so that any representations, promises, or acknowledgments of problems can be documented and referenced later if disputes arise.
The buyer should arrange for periodic professional inspections throughout the construction period and should require the developer to provide regular written status updates, photographs of work in progress, and copies of municipal approvals and utility connection agreements.
At the moment of completion, the buyer should not accept transfer of the property (or the keys) until a final comprehensive inspection has been completed, any apparent defects have been documented in writing, and the developer has either remedied those defects or acknowledged in writing that the buyer is accepting the property with reservation of rights to demand remedy of the defects within the statutory warranty periods.
The buyer should obtain and carefully review all of the following documentation before or at the moment of the notarial deed: the decennial warranty policy documentation, all building permits and municipal approvals, final inspection certificates from municipal authorities, certificates of proper installation for all systems, utility connection agreements, and any warranties or guarantees provided by installers of equipment or systems.
Resolving Disputes and Enforcing Protections
If defects are discovered after the transfer of ownership and the developer refuses to remedy them or to provide compensation, the buyer’s remedies involve either negotiated settlement with the developer or litigation through the Italian court system.
Negotiation is often more efficient and less costly than litigation, and many disputes can be resolved through discussion facilitated by the buyer’s lawyer, particularly in cases where the developer is concerned about damage to its reputation or where the cost of the remedy is modest relative to the cost of litigation.
If negotiation is unsuccessful and the buyer wishes to pursue a legal claim, the buyer must initiate proceedings in the competent court (typically the court in the jurisdiction where the property is located), file a claim alleging breach of contract or breach of warranty, and present evidence of the defect and the developer’s refusal or failure to remedy it.
The Italian court system can be slow, and litigation can extend for several years, with appeals potentially extending the process further. For this reason, attempting to resolve disputes cooperatively with the developer is preferable if possible, and having a lawyer advocate for the buyer’s position throughout the process maximizes the likelihood of successful resolution.
The Value of Legal Guidance Before and After Purchase
Purchasing property from a developer, particularly off-plan property purchased based on plans and promises rather than on a completed physical structure, involves substantial financial exposure and dependence on the developer’s completion of a complex construction project and contractual obligations. Understanding the legal framework of protections—the fideiussione and escrow arrangements, the decennial warranty, the statutory warranties, and the contractual terms—and ensuring that these protections are properly established and enforced throughout the transaction is essential for managing the risks inherent in developer sales.
Govoni Law assists international buyers purchasing off-plan and newly built property in Sardinia by reviewing preliminary contracts before the buyer signs, identifying unfavorable terms and negotiating more balanced language, verifying that financial protections (fideiussione and escrow) are properly established, arranging for periodic professional inspections throughout construction, documenting apparent defects at the moment of completion, and advising the buyer regarding remedies and enforcement of protections if defects or breaches emerge.
This legal guidance before signing ensures that the buyer’s rights and protections are explicitly defined and documented, and guidance during and after construction ensures that those protections are actively preserved and can be effectively invoked if problems arise. For international buyers purchasing remotely, having a qualified legal representative in Sardinia coordinating oversight of construction and completion provides essential assurance that the investment is being properly managed and that the buyer’s contractual rights are being enforced.