The SS.UU. on the nature of the invalidity of contracts concerning abusive buildings
The Corte di Cassazione, with sentence 22 march 2019, n. 8230, resolved the contrast existing in jurisprudence on the nature of the nullity of contracts concerning real estate without the details of the qualifying title, between the theory of “formal nullity” and that of “substantial nullity”.
According to the first, the lack on indication in the act by the transferor of the qualifying titles always constitutes a hypothesis of absolute nullity, attributable to the art. 1418, last paragraph, c.c., as a hypothesis of formal and non-virtual nullity (Cass. n. 8685/2009; Cass. n. 8147/2000); according to the “substantial theory”, instead, “the contract concerning an irregular asset from a building point of view is affected by substantial nullity”, privileging the ratio of the art. 40 of the l. 47/1985, which is to hinder the marketability of irregular properties (Cass. n. 23591/22013; Cass. n. 28194/2013; Cass. n. 25811/2014; Cass. n. 18261/2015).
Therefore, the United Sections have affirmed the following principles of law:
“the nullity imposed by the D.P.R. n. 380 of 2001, art. 46 and by Law n. 47 of 1985, Articles 17 and 40, must be traced back to the art. 1418 c.c., paragraph 3, of which it constitutes a specific declination, and must qualify as a textual nullity, with this expression having to be understood, in strict adherence to the normative data, a single case of nullity affecting the acts between the living to real effects listed in the provisions that provide for it, aimed at sanctioning the failure to include in the said documents the details of the habilitation title of the building, a title which, however, must really exist and must refer to that property”.
“In the presence of the declaration of the alienator of the details of the urbanistic title, real and referable to the property, the contract is valid regardless of the profile of the conformity or of the discrepancy of the construction realized with the mentioned title”.