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Auctioned funds, watch out for CDU

06 December, Italia Oggi

Beware of the certificates of town planning use class included in the funds sold through auctions. They might not be updated since the regulation of the Consolidated Act for construction doesn’t apply to foreclosures (DPR 380/2001), while the Civil Procedure Code is applicable. The deed of transfer of the asset bought on auction is not, however, void in absence of the certification certifying what is possible to build on that land (especially the potential use for residential purposes or whether there are some constraints). Even it’s necessary to sell, it’s not possible to sacrifice the reasons of the penitential buyer, which must be protected in case the attached CDU does not correspond to reality, perhaps because the municipal regulating plan has changed. It’s better, therefore, to ask for the CDU or to check the actual condition of the auctioned asset during the phase of proprietary transferring. This is what was understood by the National Council of Notaries no. 517/2017/c around the inclusion of the certificate of town planning use class applied to the transfer decree regulated by the Article 591-bis of the Civil Procedure Code. The study shows the technicalities of the foreclosure procedure, but the message between the lines is to exercise caution. Let’s see the legal technicalities. In the case of property execution sales for individual enforcement, the procedure and the attachment of the CDU are pursuant to the articles of the Civil Procedure Code (articles 567 and 591-bis) and to the related executive provisions (article s 173-bis and 173-quarter); while the Article 30 of the Consolidated Act of construction does not apply, except for the case when this is not quoted by the trial provisions. These regulations imply that the potential buyers would be in the conditions to know the situation and destination of the land (besides the buildings), avoiding in this way to put on sale non-marketable assets since they originate from a previous fraudulent parcelling of land, or selling the described assets with a purpose different from the actual one. The CDU to attach, in any case, is the one already acquired through the trial procedure, including the land use specified on the sale advertisement and published together with the appraisal. Everything complies with the rule of the identity of the asset described between forced sale and transfer decree. But this might not be enough. It’s not a chance that the authorised seller (namely a professional appointed by the Court to proceed with the sale operations) could acquire a new certificate to verify the actual condition of the asset, during the sale as well as during the drafting of the decree.  Therefore, it’s definitely advisable to be cautious when dealing with a dated CDU or when in doubt regarding the purpose of the asset. From the verification, it may turn out some issue or a contingency (possibly a variation of the urban planning instrument or of the purpose of the asset). In this case, the asset described in the judicial documents is different from the one described in the appraisal or in the advertisement. It may be possible too that the sale procedure is vitiated. The only thing to do in this case is to ask the judge to check and advise on how to proceed. The judge may use his authority to verify the possible dissimilarities of the asset or the difference in value in the documents, and consequently interrogate the parties and revoke a potential award if he thinks that it’s severely vitiated. The study of the notaries comes to the following conclusions. Failing in acquiring the CDU of an asset on sale does not void the sale itself at the condition that the correct purpose is included in the appraisal or in the advertisement, or in the case said the purpose is not relevant for the description or the value of the land on sale. Whereas the sale can be challenged in case of failed acquisition, or failed acquisition of the CDU or failing at passing it (due to changed urban planning instruments), causing a significant error in the description of the asset, to the point that it constitutes the ground for opposing to the deeds of the sale sub-procedure or to the transfer decree.

Source: Italia Oggi

Translator: Cristina Ambrosi