With the recent Judgment No. 136/2026, the Tribunal of Tivoli provides several clarifications regarding a preliminary real estate sale agreement with anticipated effects, focusing on the relevance of planning irregularities and on the consequences of the promissory purchaser’s breach.
Indeed, by subsuming cases of planning irregularities under the provision of Article 1489 of the Italian Civil Code, the Tribunal clarified that such irregularities may lead to the termination of the contract only where the purchaser (i) was unaware of them and - if the purchaser had known of them - (ii) would not have purchased the property encumbered by such burden.
Consequently, the Tribunal (i) dismissed the objections raised by the purchaser; (ii) declared the termination of the preliminary agreement due to the purchaser’s breach; and therefore (iii) ordered the return of the property, the forfeiture of the confirmatory deposit, and the payment of occupation indemnity.
The recent Judgment No. 136/2026 of the Tribunal of Tivoli (hereinafter, the “Judgment”) was issued following litigation concerning a preliminary agreement for the sale of real estate (hereinafter, the “Preliminary Agreement”), which provided for the early transfer of possession of the property to the promissory purchaser.
The promissory sellers had brought the action before the Tribunal seeking: (i) termination of the Preliminary Agreement due to the failure to execute the final deed of sale; (ii) restitution of the property; and (iii) payment of an indemnity for the occupation of the asset.
Conversely, the defendant appeared in the proceedings alleging the existence of building and planning irregularities affecting the property and requested termination of the contract due to the sellers’ breach, together with the restitution of the sums paid and of the commission paid to the real estate agency.
First, in the Judgment, the Tribunal once again clarified the legal nature of the preliminary agreement with anticipated effects. The availability of the property by the promissory purchaser is grounded on ancillary contractual relationships connected to the preliminary agreement, namely:
(i) a loan for use with regard to the delivery and enjoyment of the property; and
(ii) an interest-free loan with regard to any sums advanced as partial payment of the price.
In support of this view, the Tribunal referred to settled case law, according to which:
“in a promise of sale, when delivery of the asset is agreed before the execution of the final contract (…) there is no anticipation of the transfer effects, but rather a relationship between connected contracts” (Cass. 15.05.2015, No. 10009; Cass., Joint Chambers, 27.03.2008, No. 7930).
Secondly, the Tribunal addressed the issue of planning irregularities for the purpose of determining termination for breach by the seller and the real estate agency.
The court-appointed technical expert found that:
(i) the main property subject to the sale complied with the relevant building permits; however
(ii) one of the accessory assets (specifically a warehouse) was affected by a planning irregularity.
On this point, the Tribunal first clarified that:
“in cases of sale of a building constructed in deviation from the building permit, no defect of the property arises (…) but Article 1489 of the Civil Code applies, concerning charges and third-party rights affecting the property”
(Cass. 10.04.2025, No. 9439; Cass. 28.09.2023, No. 27559; Cass. 28.02.2007, No. 4786; Cass. 04.10.2004, No. 19812; Cass. 23.10.1991, No. 11218).
Having thus qualified the legal framework, the Tribunal examined the applicability of the protection provided by Article 1489 of the Civil Code, which requires verification of specific conditions, including:
(i) the purchaser’s lack of knowledge of the charge or irregularity;
(ii) its impact on the usability or value of the property; and
(iii) where termination is sought, proof that knowledge of the charge would have led the purchaser not to conclude the contract.
In this respect, the Judgment refers to the jurisprudential principle according to which:
“termination cannot be automatically declared, since it must be established (…) that the purchaser would not have bought the property encumbered by the charge”
(Cass. 22.02.2019, No. 5336; Cass. 27.09.2022, No. 28136; Cass. 11.05.1984, No. 2890; Tribunal of Perugia, 10.11.2021, No. 1531).
In the present case, according to the Court, such conditions were not met because:
(i) the preliminary agreement contained a clear disclosure regarding the planning status of the building, stating that “the building in question was constructed in the absence of a license (…) and the promissory purchaser declares (…) that she has been informed of the factual and legal status of the property”; and (ii) the ascertained irregularity concerned an accessory asset, rather than the main property forming the core of the economic transaction, and therefore was not sufficient in re ipsa to demonstrate its decisive relevance to the conclusion of the contract.
Conversely, the Tribunal upheld the claim of the promissory sellers regarding the breach of the promissory purchaser.
According to the Judgment, the evidentiary phase showed that:
(i) the parties had set a deadline for the execution of the final contract;
(ii) the sellers had served a formal notice to perform (diffida ad adempiere); and
(iii) the defendant failed to execute the deed while continuing to occupy the property.
Therefore, the Court declared the termination by operation of law of the preliminary agreement pursuant to Article 1454 of the Civil Code, also recalling the principle according to which:
“a judgment declaring termination of a contract for breach produces (…) a restitutory effect ex tunc with respect to the performances already rendered”
(Milan Court of Appeal, 09.06.2022).
Considering these findings, the Judgment established inter alia:
(i) the right of the promissory sellers to retain the confirmatory deposit;
(ii) the obligation of the promissory purchaser to return the property; and
(iii) the obligation to pay the fruits corresponding to the early enjoyment of the asset.
On this point, the Judgment refers to the case law according to which:
“the promissory purchaser who has obtained early delivery and possession of the property (…) must not only return it (…) but must also pay the fruits corresponding to its early enjoyment”
(Cass. 17.04.2025, No. 10145; Cass. 30.11.2022).
In conclusion, the Judgment appears to reaffirm that planning irregularities are relevant only where they (i) concretely affect the economic transaction and (ii) were not known by the purchaser. At the same time, it confirms that a promissory purchaser who fails to execute the final deed and continues to hold the property must return it and pay the fruits corresponding to the early enjoyment.
In the author’s view, however, several concerns arise regarding:
(i) the different relevance attributed by the Tribunal to planning irregularities affecting the main property compared to those affecting accessory units, considering the legitimate (and presumed) interest of the purchaser in acquiring a property fully compliant with planning regulations;
(ii) the shift of the burden of proof onto the purchaser regarding the essential interest in acquiring a property free from planning irregularities (an interest that should arguably be subject at least to a rebuttable presumption); and (iii) the recognition of the right to retain the confirmatory deposit following termination of the contract (rather than withdrawal), given that the two remedies should be alternative and therefore incompatible.