Minor urban planning irregularities between cancellation and termination of the sale

The regulation of building violations and, more generally, of urban planning discrepancies presents an increasingly relevant gray area in real estate sales. Application experience shows how modest building interventions - internal modifications, light closures, distribution variations, non-essential planimetric differences - are frequent in buildings dating back to and not always recorded in building permits or in current cadastral plans. These hypotheses, although minimal, may demonstrate a legal relevance such as to have significant effects on the validity of the sales contract.

The obligations for the seller and the ruling of the United Sections of the Court of Cassation

Pursuant to art. 46 of the Presidential Decree 380/2001 there is an obligation for anyone selling a property to indicate "the details of the building permit or amnesty permit". Without this indication the deed is void. The scope of application of this provision was at the center of a lively jurisprudential debate, now dormant. Previously, it was believed it was possible to extend the hypothesis of nullity pursuant to art. 46, Presidential Decree 380/2001, also to the hypotheses of urban planning non-compliance of the property with respect to the title. To date, however, also following the intervention of the United Sections, the jurisprudence is clear in recognizing that the nullity of real estate transfer deeds is linked solely to the failure to mention the details of the qualification title of the property in the deed, regardless of the discrepancy of the construction with respect to the title mentioned (recently, Civil Cassation, Section II, ord. 19 April 2025, n. 10360).
In this sense, in fact, it should be remembered that the Court of Cassation, Section. United, sent. 8230/2019 constitutes a fixed point in the reconstruction of the system. The Court stated that the nullity provided for by art. 46 of the Presidential Decree 380/2001 is a textual nullity, relating exclusively to the lack in the deed of the details of the building permit or of the declarations required by law.
From this comes the elimination of the figure of substantial urban planning nullity. Thus, therefore, the conformity or discrepancy of the property with respect to the building permit does not affect the validity of the contract and even the sale of "substantially different" properties is valid, as long as the deed contains the required declarations.
The transferred property may present urban planning discrepancies, even significant ones, without this affecting its validity. The topic is then transferred to the context of the exact fulfillment of the seller's obligations.

Between cancellation and termination due to seller's non-compliance and severity criteria

At this point, it is appropriate to focus on the consequences deriving from the sale of a property that presents building defects. The main remedies are cancellation and termination of the contract for non-fulfilment.
The cancellation of the contract pursuant to articles. 1427 ff. d.c. it has a limited scope of application in real estate sales with urban planning discrepancies as it can only occur in the presence of an essential and recognizable error, concerning objectively relevant qualities of the property or malice of the seller, who has knowingly concealed abuses that cannot be remedied or harmful. However, jurisprudence appears more inclined to bring buyer protection into the paradigm of resolution, not cancellation, except in cases of evident information manipulation.
In the case of the sale of a building with urban or cadastral differences, for example, jurisprudence recognizes the applicability of art. 1489 cod. civil - in the matter of charges and rights of others weighing on the same thing - which gives the buyer the remedy of terminating the contract or reducing the price (Venice Court of Appeal, Section III, sentence 17 April 2025, n. 1482).
In this sense, for the purposes of contractual termination, a series of criteria are identified for assessing the severity of the breach due to building defects:

- impact on the usability and usability of the property;

- whether the work can be remedied or not;

- economic significance of the discrepancy and appreciable decrease in value;

- knowledge or knowledge of the discrepancy by the buyer;

- cont the seller's declarations, knowing whether he has guaranteed full urban planning compliance.

However, the protection of the buyer cannot translate into an automatic resolution mechanism: the discrepancy must have a substantial impact on the contractual interest pursued (art. 1455 civil code) even with regard to the specific case. In any case, the statute of limitations for the action runs not from the date on which the translational effect occurs but from the objective manifestation of the damage, because only from that moment can the injured party know its existence and causes (Latina Court, Section I, sentence 24 September 2024, n. 1795).

The contractual relevance of the various types of urban planning discrepancies

Following a systematic reconstruction, three main categories can be hypothesized: non-significant discrepancies, significant discrepancies that can be remedied and those that cannot be remedied.
In the first case, we may be dealing with interventions without substantial urban planning-building impact: they are considered unsuitable for determining a qualified non-compliance, since they do not alter the legal marketability of the asset; the intended use and the possibility of achieving usability.
Irregularities that can be easily eliminated or regularized and are not suitable for appreciably reducing the economic value of the asset have also been included in this category.
The cases of significant but remediable discrepancies include abusive interventions that would have required CILA or SCIA, or in any case susceptible to ordinary amnesty pursuant to art. 36 Presidential Decree 380/2001. In the contractual context, these discrepancies constitute a simple non-fulfillment, not usually suitable for legitimizing termination, but susceptible to execution in a specific form (urban planning regularization) or reduction in price and possible compensation for damages.
The typical remedy is fulfillment, not lapse of the contract. 
The third category of significant and non-remediable discrepancies includes the most critical situations of works carried out in violation of urban planning indices, legal distances, environmental or landscape constraints, not susceptible to amnesty. In such cases, the seller's non-compliance takes on a serious connotation pursuant to art. 1455 cod. civil
The relevant jurisprudence agrees in recognizing the termination of the contract when the non-remediable abuse affects the economic-legal substance of the asset, compromising its usability or legitimate destination: this is the case, for example, of the seller who increases the volume and habitable surface area after having obtained the building permit (as noted in the Cosenza Court, sentence 30 October 2023, n. 1787).
The preliminary contract is the privileged forum for defining the structure of interests, also for the purposes of urban planning regularity. Failure to provide information on the presence of known irregularities, or the formulation of untruthful declarations regarding construction regularity, may constitute a hypothesis of pre-contractual liability (art. 1337 of the civil code) or even of contractual liability in the case of specific guarantees on conformity.

In the presence of discrepancies, the buyer's right to termination is recognized if the irregularity is serious and affects the commitments undertaken.
It is therefore appropriate that the details of the building permits are specified in the preliminary document; the existence of any known discrepancies; their curability; regularization commitments; the buyer's possible acceptance of non-prejudicial discrepancies.
The presence of discrepancies, including cadastral ones, must be regularized before the definitive contract is stipulated, representing an essential element for the fulfillment of the obligation to stipulate. Otherwise, the withdrawal of the promissory buyer is justifiable as in the case in which the promissory seller does not provide for the regularization of the cadastral evidence, jeopardizing the possibility for the promissory buyer to obtain the financing requested for the purchase of the property (Civil Cassation, Section II, sentence no. 26 May 2025, no. 13959).

Conclusions

In light of the proposed reconstruction, some useful general indications can be drawn.
From a textual point of view, the validity of the contract regardless of the non-conformity of the property, as the urban planning nullity is only formal. In cases of non-conformity of the good, cancellation constitutes an exceptional remedy, limited to defects in the consensus on essential qualities of the good and a wider application of termination for non-performance is recognized in all those cases of serious and unremediable non-conformities which affect the economic function of the good. Otherwise, minor discrepancies do not give rise to termination, but may result in a price reduction or compensation.
The result is a balanced discipline, in which the "urban planning pathology" of the property does not automatically translate into invalidity of the sale, but is brought back within the traditional category of contractual fulfillment, with broad valorisation of good faith, correct information and
protection of the buyer's confidence.