With an order dated 17 April 2018, the Court of Rome, fully accepting the defensive line of FGA - Studio Legale Ferraro Giove e Associati, rejected the request of a buyer who requested the return of 177 thousand euros as the price exceeding the maximum assignment, limiting the seller's sentence exclusively to the sums necessary to obtain the so-called franking of the property, equal to the much smaller sum of 10 thousand euros.
The decision, signed by judge Antonio Perinelli, puts a barrier to the consequences of an interpretation with unconstitutional implications of a sentence of the United Sections of the Court of Cassation of 2015, which had raised alarm in over 200 thousand Roman families interested in buying and selling houses built with PEEP, the plans for economic and social housing.
Furthermore, as in other previous cases, the absence of liability of the notary before whom the sale of the property in question had been concluded was confirmed. "The Judge - underlines the lawyer Maurizio Gugliotta of FGA - accepted all our objections both in terms of abuse of law and in terms of total absence of responsibility for the notary sued".
In fact, the sentence established the following: “The appellants ask for the return of the price paid in excess of the maximum transfer price. This request would be fully legitimate if the legal system did not grant other remedies to release the asset and therefore the constraint of the maximum price was intended to follow the asset - as a real burden - for all future transfers as affirmed by the United Sections (of the Court of Cassation , ed.). In reality this is not the case since the owner (but not the one who sold) is entitled to proceed with the enfranchisement of the asset by paying a price”. And again: "The choice of the appellants of the option of restitution of the price exceeding the maximum price instead of the franking, due to their utility, with unjustified aggravation of the position of the defendants, must be considered detrimental to the principle of good faith and therefore constitutes a case of abuse of law".
From the point of view of constitutional legitimacy, in liquidating only the sums necessary to obtain the enfranchisement, the sentence established that "this interpretation is the only one that allows an application of the rule in compliance with the Constitution, otherwise an unjustified difference in treatment would result between those who owned the properties until July 2011, who did not have the opportunity to stamp the property and could therefore be required to return the sums paid in excess, and those who became owners after that date, who instead were recognized the possibility of franking the goods and reselling them without price limits. This disparity would constitute a clear violation of the art. 3 of the Constitution".
With regard to the position of the notary, no lack of diligence was identified, given that "before the sentence of the United Sections of 2015, the majority interpretation in jurisprudence held that the buildings in subsidized housing were freely transferable without price limits. The opinion expressed by the National Council of Notaries of 20.10.2011 and the indications provided by the Municipality of Rome in the 2013 circular filed in deeds by the defense of the called third party were also in the same sense".
The pronouncement collects and summarizes the in-depth legal analyzes that emerged in the recent conferences held on the subject, not least that of the Council of the Bar Association of Rome on 27 March, where FGA - in the person of the lawyer Stefano Giove - had already expressed the need to guarantee a "constitutional" interpretation of the 2015 Cassation ruling.
