Real estate news

Among the obligations of communication of the real estate agent there is also that of informing the buyer of any urban defects of the building? To answer are our collaborators of condominioweb.

The mediator and technical-legal investigations. Let's start from a fact: the mediator does not have the burden of carrying out specific inquiries on the asset object of the planned business since they do not fall within the ordinary common diligence required to the mediator in the performance of his performance.

However, this does not exclude that the mediator may, with special agreement, be obliged to carry out specific technical-legal investigations and to carry out any assessment of the state of the property in such a way as to guarantee its urban-cadastral regularity.

In practice, in fact, the possibility of contractually providing for additional obligations to be borne by the mediator is becoming widespread, obliging the trader to ascertain also the eventual urban planning of the building and to assist his client until the moment of signing the deed.

In case of non-fulfillment of the contractual obligations, therefore, the obliged party can refuse to pay the provision. Is the Ombudsman obliged to conduct legal technical investigations in the absence of a particular task? No, let's see why.

The case. The promissory buyers of a property sue the mediator, in order to obtain from the latter the compensation for the damage sustained for not having been informed of the urban differences that characterize the good preventing its marketability.

The judge of first and second degree rejected the request of the promissory buyers, pointing out that the mediator had not violated the information obligations imposed by the law against him, stating that the differences in question could have been identified only by a specially appointed technician.

The promissory buyers recur in the Supreme Court, claiming that the mediator would have failed: a) the obligation to provide information provided for in the first paragraph of art. 1759 c.c. of the civil code according to which the "mediator must communicate to the parties the circumstances known to him, relating to the assessment and security of the transaction, which may affect the conclusion of it", b) as well as the duty of care resulting from the professional activity exercised (Article 1176 of the Civil Code, second paragraph).

What is meant by normal diligence? The Supreme Court ruling has ruled on the case in question, establishing that the Ombudsman does not bear the obligation to conduct particular legal technical investigations when he has not been expressly instructed. (Court of Cassation, 6.3.2018, ord No. 5153)

Before arriving at this conclusion, the Court of Cassation, returning to a consolidated approach, highlighted that the law n. 39/1989 subordinates the exercise of mediation to the possession of specific professional capacity requirements, and the obligation to provide information on this professional must be commensurate with the normal diligence to which he is obliged to comply.

Therefore the obligation to provide information on the mediator must be commensurate with the normal ordinary diligence to which he is obliged to comply in the performance of his performance.

According to the judges of the Cassation, however, does not fall within the ordinary common diligence, which must characterize the work of the mediator in the exercise of professional activity, in the absence of specific task, the obligation to carry out investigations of a technical-legal nature as for example, those consisting in the assessment, after checking the real estate registers, of the freedom of the property from detrimental transcripts.

In this case, therefore, it was established that the mediator had not assumed any contractual obligation to verify the urban regularity of the property subject to preliminary, and the judgment found that the same differences were not known even by the sellers and could have been identified only by a specially appointed technician.

Nothing to do, therefore, for buyers: the mediator, unless it was expressly provided for in the contract, is not obliged to check the urban regularity of the property.