Hi,
 
It’s Monday again and I would be delighted to join you for coffee. Today I’m talking about the relationship between a real estate agent and someone who is aiming to purchase a property in Italy.
 
In fact you have to know some important things about this topic and I would like to help you with it.
 
When you want to buy a property in Italy, you almost always rely on a real estate agent.
 
The law 39/89 art. 6 and subsequent Legislative Decree 59/2010 provide that only real estate agents duly registered in the business registers or in the directories kept by the chambers of commerce - in a corporate form or as a natural person - are entitled to commission. In fact, registration is allowed if the real estate agent meets the requirements of the law.
 
What is necessary for the real estate agent to be entitled to commission? It is necessary that a legally valid agreement has been reached between the parties. This certainly exists when the sale took place.
 
In some cases, the commission is due even if the sale is not completed. Is a preliminary sales agreement enough? Is there an obligation even if just an irrevocable purchase proposal is signed? This case was dealt with by the Court of Cassation, Civil Section VI, with a judgement 77/8120 published on 10th April 2020. In fact, the Supreme Court has established that the right to commission cannot be linked to the stipulation of the preliminary agreement, which is having only obligatory effects, because at this stage it is not possible to consider the agreement as finalized. The Supreme Court has made it clear that a deal can be said to have been concluded and therefore the mediator is entitled to commission - if the parties are given the opportunity to obtain specific enforcement of the purchase agreement.
This is not a surprise, but the confirmation of an orientation of the Supreme Court of Cassation, summarized in the previous judgment No. 30083 of 2019, the judgment that said: “In order to grant the mediator the right to commission, the deal must be considered concluded when, between the parties placed in relation by the mediator himself, a legal constraint has been created that enables each of them to act for the specific enforcement of the agreement, in the forms referred to in Article 2932 of the Italian Civil Code, or for compensation for damages resulting from the failure to achieve the result useful to the planned contractual agreement.”
 
In conclusion, it is advisable to always rely on a qualified real estate agent, who guarantees full compliance with legal requirements. When you decide to buy or sell a property and negotiations have taken place, then you have to consider whether the agreement has been concluded in its essential parts or not and in a form for which you can compel the other party to respect it. In this case the commission is due to the mediator, even if the sale is not executed. Otherwise, if there has not been agreement on all the essential points of a sale, but only on some important points, the commission is not due.
 
However, it is always necessary to consider the obligation of good faith in negotiations, for which one party cannot suddenly decide to change his mind and not to sell or not to buy anymore, but each party must always act correctly; the failure to finalize a sale can be justified by the failure to reach an important aspect of the agreement, first of all the price or even the time in which it shall be paid.