Who sold at market price today can avoid the refund of the price difference
The solution of the legislator on the vexata question of the price constraint on properties built in subsidized construction (so-called PEEP areas). Anyone who has sold a property previously purchased under subsidized construction at a market price can now avoid returning the price difference by proceeding directly with the franking of the property. The Italian Legislator, presumably sensitized by recent legal proceedings, as well as by the legal debate on the issue in recent years, intervened, at the end of 2018, to try to resolve the vexata quaestio that emerged following the well-known pronunciation of the United Sections of the Cassation (n .18135 of September 16, 2015) in relation to the consequences arising from the failure to comply with the price constraint in the sales and purchase of properties in PEEP areas (Plans for Economic and Popular Building).
In order to fully understand the scope of such a “mini-reform” on the matter, it is worth recalling the legal “earthquake” that has occurred since September 2015, following the aforementioned ruling with which the Supreme Court, defining the jurisprudential conflict that has lasted for many years between several simple sections, it has ruled that, in the context of buildings built under a subsidized building scheme (Law 167/1962), only in relation to those attributable to Law no. 865/1971, the original price constraint has not lapsed as a result of the elimination of the inalienability of these goods but continues to weigh on them, also in relation to subsequent sales to the former, unless the so-called enfranchisement; on this point, see the article already published on 6 July.
As it has been observed, up to that moment the majority jurisprudence of the Cassation itself and for the effect all the operators of the sector (Notaries, Banks, Real estate agents, etc.), had considered that this price constraint existed only relative to the first transfer of ownership (from the builder to the first buyer or to the assignee partner of the cooperative) and within a time limit of 5 years from the same, with the consequence that many properties, originally built under a facilitated building scheme, have been sold over the years to far higher full market price. In this context, the aforementioned sentence of the SU, had radically changed the legal – and consequently economic – perspective of the matter, making sure that, while the sales in their essence remained valid, the seller became obliged to return, in favor of the buyer, of the part of the price collected in excess of the tied one.
Faced with such a panorama, the Court of Rome (with the ruling of 17.4.2018) had, however, faced the issue for the first time from a different point of view, apparently contrasting with the diktat of the Supreme Court even if in reality it was not necessarily incompatible with it, providing an interpretation which, although starting and taking note of the partial nullity resulting from the interpretation sanctioned by the Judge of legitimacy, aimed to contain its practical consequences, leading to a concrete “intermediate” solution, considered more correspondent to the principles of substantive justice.
As already illustrated in detail with a previous article, the Capitoline Court, considering that the buyer of this type of property still had the possibility of removing the constraint in question by paying a considerably lower amount than the price difference claimed in the against his assignor, he believed that any judicial action in this sense could have given rise to unjustified enrichment, to the point of even integrating a hypothesis of “abuse of the law”; hence the decision to recognize to the claimant, not the entire price difference, but only the amount corresponding to the sum necessary to complete the franking procedure at the Municipality of Rome, in order to trace the form of compensation to equity however due to the current owner (who, at the time, paid the property at the full market price without being able to sell it today with the same freedom).
The novelty of these days is that Parliament with art. 25 undecies of the Law n.136, 17 December 2018 (of conversion of the Legislative Decree n.119, 23 October 2018,) has modified the art. 31 of Law n.448 / 1998 replacing paragraph 49 bis and inserting, after paragraph 49 ter, a new paragraph 49 quater and thus issuing (finally) a specific discipline on the point.
Basically the most relevant changes are two. The most important is the one that, in summary, confirms the approach provided by the Court of Rome and definitively mitigates the practical consequences of the ruling of the Cassation in 2015, providing that the removal of the bond (again through the so-called franking procedure) extinguishes the right to any claim for reimbursement of the difference between the agreed price and the tied price. Consistent with this modification, the novella establishes the legitimacy, to carry out the procedure for franking, of all the subjects (natural persons) “who have an interest”. In simpler terms, as of today the seller, who risked suffering a cause and the result of a very heavy sentence for the refund of the price difference (sometimes of considerable size), can avoid, or rather prevent, directly this risk by proceeding himself to the request to remove the bond, obviously bearing the costs but without, therefore, having to pay this amount to the buyer – current owner who, therefore, ceases to be the only person authorized to do so. In this regard, the second paragraph of the aforementioned art.25 undecies deserves special mention (verbatim: “the provisions referred to in paragraph 1 also apply to the properties covered by the contracts entered into before the date of entry into force of the law converting this decree” ) which sanctions the retroactivity of this reform, without which – it must be said – the concrete effectiveness of the reform would have been substantially thwarted if we consider that almost all the properties concerned relate to sales prior to September 2015 (given that only before the judgment SU had been widespread in this violation).
The second change, of more nuanced significance (to the point of arousing interest more than anything else in legal operators), concerns the modification of the legal classification of the partial invalidity of the sale, relative to the price difference, pending (and therefore up to the conclusion ) of the franking procedure. While the Supreme Court’s ruling resulted in a partial “nullity” of the act (in the terms set out above) the specific reform being “ineffective” (verbatim “does not produce effects”). A clarification that does not move substantially since the price difference remains in any case claimable by the buyer – albeit for different reasons – in the absence of the removal of the bond, without prejudice to the consequences that could arise in the procedural context on the pending cases (it is for example, the rejection of applications based on nullity, rather than on ineffectiveness has already been hypothesized, perhaps, however, underestimating both the possibility of specifying the application in course of the case, especially if arising from a supervening reform, both the circumstance and ineffectiveness constitutes a minus with respect to nullity with the consequence that the Judge seized could still consider it included in it).
A final consideration then arises with regard to the constitutional legitimacy of such a retroactive rule, since it cannot be forgotten that the Constitutional Court has repeatedly intervened to modify similar reforms. In this regard, it should be remembered that the Judge of the laws, less than a year ago (with the judgment of 30 January 2018, n.12) sanctioned the principle according to which: “for constant constitutional jurisprudence, corresponding to the jurisprudence of the Edu Court, even if it is not forbidden to the legislator (without prejudice to the privileged protection reserved to criminal matters by article 25 second paragraph of the Constitution) to issue retroactive rules with reference to the judicial function, it cannot be allowed to resolve, with the form of the law, specific disputes, violating the principles relating to the relations between legislative and judicial powers and concerning the protection of legitimate rights and interests, determining the imbalance between the two positions at stake “.
On this point, however, it must be observed how the reform in question could also be exempt from such a complaint, given that it would seem to have the merit of leading the vexata quaestio to a more equitable solution and therefore more adhering to criteria of substantial justice, avoiding (as illustrated) the risk of locupletation of the buyers and thus avoiding the “imbalance” placed at the basis of the stated principle; this however – it must be said for the sake of completeness – omitting in any case to resolve the opposing profile of the “speculation” at the time made by the sellers through the alienation of goods that the legislation had intended for very different purposes, just as highlighted by the S.U. in the well-known pronunciation of 2015.
Avv. Marco Tocci
Studio Legale Tocci