With the recent Order n. 11371 of May 3 2023, the Supreme Court of Cassation ruled that, regarding the real estate mediation: “The mediator, pursuant to art. 1759, paragraph 1, c.c., must communicate to the parties the circumstances known to him/her, or that he/she should have known by the use of the care imposed by the professional nature of the business, relating to the assessment and security of the deal, which may affect its conclusion or determine the parties to sign it under different conditions; it follows that, where the transaction is settled, the broker may be liable for compensation in the event of failure to inform the buyer on the existence of urban or building irregularities not yet remedied related to the property being sold”.
This argumentative process, enhancing the professional qualification of the mediator – who intervenes in the stages of formation of the real estate contract prior to the intervention of the notary and the completion of the checks to which the latter oversees – concludes that the same has towards the parties of the preliminary negotiation a real prohibition of reticence, being, on the other hand, required to provide all information known to him/her.
In the event of failure to inform the purchaser of the existence of an irregularity in the planning or building of the property being sold, of which the mediator had and could have been informed, there is, therefore, a real liability compensation of the reticent or mendacious mediator, which makes him/her responsible to the customer (alongside this responsibility to any liability of the seller) and that can be claimed by the buyer either by asking the mediator for compensation for the damage or by refusing to pay the commission.
In particular, in the Court’s interpretation, where the case is finalized, such indemnification liability of the mediator may be related to the lesser advantage or the greater capital burden resulting from the contractual determinations of the acquiring party, having been caused by the information deficit suffered (regardless of the seller’s concurrent liability), also to the amount of the commission paid in view of a deal that would have required a different economic assessment to achieve the objectives set by the contractor.