Homebuyers (or investment property) often sign a preliminary purchase and sale agreement by paying a deposit. But what if, on the date of the deed, the property lacks a certificate of occupancy and – even worse – does not even qualify for it?

On this point the Supreme Court (Sec. II), Order No. 2132, Feb. 2, 2026 , offers a very useful clarification for buyers and sellers, and especially for those who rely on a real estate lawyer or real estate attorney to protect themselves before (or after) signing the preliminary.

1) The case: usability promised in the preliminary, but the deed is missing

In the case decided by the Supreme Court, the promising sellers had committed in the preliminary agreement to deliver the certificate of fitness by the date set for the deed.

Arriving on the day set for the final, the certificate was not available and the property had substantial criticalities that prevented it from being obtained (building discrepancies, nonconforming heights, health problems including infiltration).

The promissory purchaser then exercised withdrawal, demanding the return of twice the deposit. The judges on the merits agreed with him, and the Supreme Court upheld.

2) The principle: without agibility, there can be a serious default of the seller

The decision reiterates a simple but decisive concept: the buyer has a concrete interest in obtaining a usable and marketable property. If there is a lack of usability (or a lack of the conditions to obtain it), the seller’s conduct may constitute a material breach, in some cases traced to the scheme of “aliud pro alio.”

In practical terms: if I buy a property that should be fit for use (living or otherwise in accordance with its function) and instead is not, I am not receiving exactly what I was promised.

3) The most important clarification: the situation on the date of the deed counts

The most “useful” step in practice is this: the situation existing on the date set for the final contract to be concluded counts in assessing the legitimacy of the termination.

This means that:

• it is irrelevant to argue that at the time of the preliminary, the requirements “maybe” were there;

• it is irrelevant to produce documents or initiate paperwork after the date of the deed to prove that “then” the property was settled;

• it is not enough to “catch up” later: if at the deed, the usability is missing and cannot be obtained, the default is assessed at that time.

For those who assist clients in buying and selling, this is a key point: any defense of the seller based on late activities or documents often fails to neutralize the consequences of default.

4) Agibility: not nullity of contract, but problem of performance

The Supreme Court also reiterates another point that is of great interest to those who do real estate law: lack of fitness does not automatically make the contract void.

The issue concernsperformance: that is, whether a party has fulfilled its obligations and whether the breach is so serious as to warrant remedies such as:

• withdrawal (if there is down payment and the conditions are met),

• resolution,

• compensation for damages.

This distinction avoids frequent misunderstandings: not every property that lacks fitness “resets” the act, but it can generate important liabilities and protections.

5) Attention: land registry regularity does not mean building regularity (nor practicability)

In the case addressed, the sellers had also tried to support their argument by citing later administrative documentation and profiles of “regularity.”

This is where a recurring theme in real estate disputes comes in: land registry and urban planning/building are different planes.

• The cadastre describes and surveys the property (for tax purposes as well).

• Urban-building conformity, on the other hand, concerns titles, lawful status, heights, sanitation and safety requirements.

• Habitability presupposes that the property is fit for use in terms of sanitation, safety, and other requirements.

Therefore, in negotiations and litigation, it is essential to make proper and “targeted” verifications, not settling for a single document.

6) Clauses in the preliminary: when the buyer’s waiver is really effective

The Supreme Court recalls an extremely practical principle: the absence of practicability may not legitimize rescission only if the buyer has expressly waived his claim to the certificate (or exonerated the seller).

In practice one often sees generic clauses (“the property is sold in the state of fact and law…”, “the buyer declares that he knows…”). These formulas alone are not always sufficient.

To reduce the risk of litigation, a real estate lawyer in Milan (or where the property is located) usually steps in to:

• Clarify whether agibility is a prerequisite for negotiation;

• Insert specific clauses (delivery obligation, terms, penalties, deposit, conditions precedent);

• Provide clear remedies in case of noncompliance.

7) Practical implications: what to do before signing (and what to do if the problem emerges later)

If you are a promissory purchaser

• Demand that it be written in the preliminary that who is to do what, by when, and what happens if the usability is missing.

• Evaluates (before signing) a technical-legal due diligence: zoning, construction, health, compliance, titles.

• If the deed lacks usability and requirements, withdrawal with a demand for double the deposit may be a concrete protection (to be evaluated on a case-by-case basis with a real estate lawyer).

If you are a promising seller

• If the property has critical issues, address them before the preliminary or state precisely the status and contractual consequences.

• Avoid relying on “fix it later”: count the situation on the date of the deed.

• If you want to sell without agibility, you need a clear and unequivocal waiver clause, otherwise the risk of withdrawal remains high.

Conclusion: a decision that strengthens buyer protection

Ordinance 2132/2026 consolidates a very concrete message: if, in the preliminary, the seller obligates himself to deliver the usability by the deed and, on the fixed date, the document is missing and the property is not in a condition to obtain it, the buyer may be entitled to withdraw and demand double the deposit.

It is a particularly useful pronouncement for those working in the real estate market and for preventing errors in the preliminary or handling disputes over usability and breach of contract.