Phase vs habitability, from the certificate to the SCIA
The habitability is currently regulated by art. 24 of your after the changes introduced by Legislative Decree 25 November 2016 n. 222 on SCIA. Before the entry into force of these provisions there was a precise distinction: “habitability license” for residential buildings and “accessibility license” for those for different use. After the entry into force of the wake, the term usability is all -inclusive and applies to all properties, regardless of their intended use.
In fact, to obtain the accessibility, the procedure provides for the presentation of a wake within 15 days from the completion of the construction or renovation works, in which the technician must certify: the existence of the conditions of safety, hygiene, health, energy saving of the buildings and systems installed, as well as the compliance of the work to the project presented and the legal requirements. In fact – underlines the study – “the usability, as today attested by the technician in charge, is no longer only a certification of the suitability of the destination of the property to the use to which it is used, but also of the urban conformity of the artifact”.
Save home and reduced requirements, the “new usability” is not a amnesty
The Salva Casa decree then introduced some transitional derogations to encourage real estate circulation. Until the issue of new ministerial requirements, it is in fact possible to obtain usability for:
- Local with reduced height: from 2.40 to 2.70 meters (instead of traditional 2.70 meters)
- Studios between 20 e28 square meters for a person (instead of 28 minimum square meters) and between 28-38 square meters for two people (instead of 38 minimum square meters).
These derogations, however-underlines the study-apply only in the event that a renovation project has been presented at the same time with alternative solutions aimed at guaranteeing, in relation to the number of occupants, suitable hygiene-sanitary conditions of the accommodation, obtainable providing for a greater surface of the accommodation and habitable compartments or the possibility of adequate natural ventilation favored by the dimension and type of windows, by the air referees, by the air. transversal and the use of auxiliary natural ventilation means.
This implies that “it is not possible to appeal to the innovations introduced by the Salva Casa decree to hypothesize a amnesty of works illegally carried out with these dimensional characteristics in the absence or in discrepancies entitled Building”.
Legal and economic marketability
As regards the purchase and sale, therefore, the study reiterates that a property without usability is not incomplete from a legal point of view, that is, it is not null. However, it undergoes a depreciation with respect to the value that would otherwise have, also in consideration of the expenses that will eventually be necessary for the purpose of obtaining the audibility.
This means that, if the certificate is missing at the time of the deed, the buyer can refuse to conclude the purchase and obtain compensation for non -fulfillment, since the seller is obliged to deliver the document. However, the parties can agree and the buyer can consciously accept a property without this certification, but must do it with full knowledge of the facts, and inserting specific statements in the act.
Particular attention should then be paid to the distinction between “formal unusability” and “substantial unusability”. In the first case, in fact, only the administrative documentation is missing, but the property has all the requirements to be declared accessible. In the second case, the property presents structural or plant deficiencies that prevent the release of audibility. Situation of which the buyer must be aware of.
Mediators obliged to inform the parties
For this reason, for example, the study underlines, the role of mediators or real estate agencies is important, for which specific responsibilities are envisaged. In fact, they must inform the parties about the need to present the urban-building documentation, including the usability, even if they are not required to carry out checks directly at the Public Administration on the regularity of the property.
In essence, the mediator who has correctly informed the seller on the documentary obligations fulfills his professional duty, while if it does not provide any information is exposed to responsibility for the damages that may derive from it.
Specific clauses in the act
The notary on his part-as the study recalls-has no obligation to indicate the presence of the certificate in the act, but has the “duty of advice in order” to the technical-legal choices of the profession. In practice, it cannot replace a technician to evaluate the suitability or otherwise of the property to be qualified as usable, but must provide all the information to the buyer so that he is perfectly aware of the consequences deriving from the purchase of a property without the element of the audibility, a circumstance that can in fact be decisive in the evaluation of the contractor regarding the opportunity to proceed or not to stipulate the purchase contract or – where he decides to purchase – Determination of the price.
For this reason, advice is always to consult a trusted technician to exclude any cases of substantial unusual unusability.
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