The house can be lost

Anyone who buys a property from a construction company should evaluate in advance the risks they may face in the event of bankruptcy of the seller. Article 67 of the bankruptcy law (Rd 267/1942) establishes that 'the following are revoked, unless the other party proves that it did not know the debtor's state of insolvency:...onerous acts carried out in the two years prior to the declaration of bankruptcy, in which the services performed or the obligations assumed by the bankrupt person significantly exceed what was given or promised to him...'.
This action is called 'bankruptcy revocatory action' and is used to declare the ineffectiveness of the deed of sale (for the conditions see the sheet opposite).
The preliminary. If you reach the conclusion of the sale by first 'passing' through the signing of a preliminary sale agreement (as happens in most negotiations), keep in mind that the deed subject to the bankruptcy revocation action will only be the definitive notarial deed and not the preliminary one. Only the first, in fact, has the effect of transferring ownership of the real estate and is, therefore, capable of causing damage to the assets of the failed real estate company and damaging the condition of equality that must exist between the creditors of the bankruptcy. If the purchase is stuck at the preliminary stage, in the event of bankruptcy the property remains in the assets of the selling company as the transfer has not taken place.
As the Court of Cassation has repeatedly stated, the existence of the conditions for bankruptcy revocation action must therefore be ascertained with reference to the date of the deed.
The guarantees. In light of the above and considering the risks inherent in similar real estate transactions, it is advisable for the buyer to ask the selling company for suitable guarantees (such as, for example, the release of a bank guarantee or an insurance policy), to avoid any negative effects of a subsequent bankruptcy revocation action (consisting, essentially, in the loss of the property). In the event that the company does not agree, it is advisable for the interested party to protect himself by turning to a bank and bearing the related costs.
edited by
Marcello Claudio Lupetti THE CHARACTERISTICS OF THE ACTION
The bankruptcy clawback - provided for by article 67 of the bankruptcy law - is an action that tends to have the sale of the property declared ineffective, so that it can then be resold at auction and the bankruptcy trustee can distribute the proceeds among the creditors. It can be done within five years of the bankruptcy ruling and presupposes that the selling company is declared bankrupt within two years of the signing of the deed of sale.
The initiation of the action is facilitated by the fact that the law takes for granted (presumption) the existence, among other things, of damage to the creditors of the bankruptcy, damage which depends on the violation of the condition of equality which must exist, again by law, between the creditors themselves. However, whoever purchased the property can provide proof to the contrary, consisting in demonstrating that the contested act did not cause any damage to the condition of equality between the creditors or that the damage was less than the value of the property sold.
FRANCE
The rules regarding real estate bankruptcy are contained in the Construction and Housing Code and in the Law on Judicial Liquidation and Receivership. The French system identifies two possible situations: the contract for the construction of an individual house and the sale of a property to be built. Two different types of protection benefit the buyer of an individual house under construction. The first is the delivery guarantee: the builder must necessarily provide himself with a bank or insurance guarantee that intervenes when the risk of failure or poor execution of the works envisaged by the contract and at the agreed price occurs. Indeed, the guarantor, in the event of inertia of the builder, can replace him to have the works carried out or completed and this also in the event of bankruptcy or judicial liquidation of the builder.
An additional, non-mandatory guarantee consists in the stipulation of insurance that reimburses the client for the expenses incurred in the event that the construction site is not opened on the agreed date.
The second situation taken into consideration is that of the sale of a property under construction on land owned by the builder, other than an individual home. This is a contract in which the buyer agrees to collect and pay for the property upon delivery, or sale of future property, with periodic payments prior to delivery. Also in this case the guarantees offered are of two types. The delivery guarantee involves an opening of credit towards the manufacturer so that the guarantor takes his place in paying the sums necessary to complete the delivery in the event of economic difficulty. This same guarantee can be expressed in a guarantee in which the lender undertakes jointly and severally with the builder to pay the buyer the sums necessary for the delivery of the property. Both of these hypotheses place an independent and autonomous obligation on the entity that provides security or opens credit compared to that of the builder, intended to operate even in the event of bankruptcy of the latter. The second guarantee, the reimbursement guarantee, operates in a very similar way to that seen for the construction of an independent house and reimburses the buyer for the expenses incurred in the event of amicable or judicial termination of the purchase contract. GERMANY
The regulations on the construction market ('Verdingungsordnung fur Bauleistungen') allow the future owner to protect himself from the builder's missteps by requiring the latter to take out insurance, or provide an adequate guarantee, which will serve both in the case of incorrect execution and in the event of bankruptcy. Unless otherwise agreed, the manufacturer must prepare the guarantee within 18 days of the conclusion of the contract. In the event that he does not do so, the buyer would have the right to withhold the equivalent of the guarantee from the sums due. UNITED KINGDOM
Generally speaking, the fate of the contract for the sale of a property in the event of bankruptcy of the builder depends on the type of contract that was stipulated. For example, if the owner of a land commissions a builder to develop the area and the builder later goes bankrupt, the owner of the land will also be the owner of the building. This only happens if the contract has not been signed by including a contrary clause, in which case the building would remain the property of the entrepreneur, thus entering bankruptcy. There are no rules or customs that require the manufacturer to provide adequate guarantees to protect the buyer. However, it seems that the prevailing orientation is to remove the property from the availability of the bankrupt builder's creditors, thus protecting the buyer. SPAIN
The 'Ley de Ordenación de la Edificatión' regulates the construction process and the regime of liability and guarantees of all parties involved. The case is foreseen in which, for any reason, the seller cannot fulfill the commitment made and there is the obligation to take out insurance that indemnifies the buyer in this case. The rule applies to any type of residential property and the guarantee extends to all sums already paid plus legal interest. The law also provides for sanctions on the manufacturer which can reach up to 25% of the sums paid as compensation. A further important indirect guarantee is given by the obligation for real estate agents, under penalty of failure to be registered in the commercial register, to take out insurance to cover any professional risks.

source: Real Estate Observatory