Made an offer to buy an apartment, but the actual size is smaller than the one that was promised

Question

Some time ago I decided to buy an apartment, so I started looking for one. I found one, sold through an agency, that I liked. The description on their website reported (and still reports even now as I'm writing) the size as 90 square meters. They also explained very clearly that, unlike most apartments, this one doesn't come with a cellar, so I wasn't buying one. Fine. I made an offer to buy it, which the owner accepted, so we put it in writing.

I needed to show the apartment's documents to my bank to ask for a mortgage, so I asked the agency to send them to me. One of them stated that the size was 90 square meters, but after some days they told me that it was actually wrong, and they explained the situation in more detail: the apartment does actually have a cellar, but the official documents kept at the land registry ("catasto", in Italian) contain a mistake, that is, one of the sheets indicates a certain cellar, while another one indicates a different one. The apartment can't legally be sold until the issue is rectified, but the agency told the current owners that doing it could easily take several months, and since they didn't want to wait that long, they decided to exclude the cellar from the sale. This is why the document had to be updated, and after some time they sent me the new one, without the cellar as expected, but the size had now become 88 square meters. Clearly it was due to the cellar no longer being counted.

I'm totally confused about what I should do now about this unexpected change. It's true that I knew that I wasn't buying the cellar, and it's true that I'm buying the apartment that I saw; but on the other hand, when I made my offer I thought I was buying 90 square meters, not 88. Given the price per square meter, these 2 square meters are worth more than 7000€. To complicate matters: the contract does have a section that describes the apartment, and there's a cell for the size, but we didn't fill it. Now I don't remember how it went, but I think they said something like "We can skip some parts to save time". Or whatever... I don't remember. Anyway I absolutely didn't imagine that the size could change or be wrong, so I said nothing about that.

So, the apartment is actually smaller than they initially said, but the contract doesn't report that. My naivety aside, what can I do now?

• Pulling back from the deal? I still want the apartment, so I wouldn't be happy with this. Moreover, when I made my offer I had to leave an advance payment of 5000€, and I'm not sure I would get them back: considering that the contract doesn't indicate the size I don't think I can say they breached it (but I'm not a lawyer).
• Negotiating? Sure, but I'm at a loss as how to handle it. If I asked for a discount, I have no idea how much I could ask for. I don't think asking for those 7000€ makes much sense, because they told me the cellar will be sold, separately (and, for some reason, through another agency) for 3.000€. And in any case, who should offer this discount? The mistake wasn't made by the owners, so I doubt they'd accept to reduce the price. Especially because I know for a fact that there were many people interested in this apartment, and they could easily sell it to someone else. The agency, then? It certainly seems correct, since at the end of the day it was their mistake. But I can't imagine they would accept so easily; I actually expect that they'd try to say that the apartment is exactly what I saw (which is true) and downplay the issue to some kind of technicality. By the way, their fee is already low compared to others (agencies ask for somewhere between 2% and 4% of the total price, and this one asks for 2%), so the margin for a discount is probably limited. But if I can't get a discount, then what?

Assuming they will try not to offer a discount, and considering that (as I'm sure you've understood by now...) I'm very bad at these things, is there anything that I can do to get some compensation? And how much could I ask for? Or, is there anything other than money that I can ask? Some legal aspect that could help me negotiating? (like: is the contract valid if it doesn't report the size?)

Answer 1

I know nothing of Italian property law, so this isn't advice, but my instinct would be to ask whether – due to the "confusion" over the quoted size changing – they'd be prepared to knock something like €5,000 off the price, or to throw the cellar in for nothing when they sort the paperwork out.

Possibly, "confusion" is too mild a word: if they knew the cellar wasn't included, but did (and still do) quote 90m², but now want to change it to 88m² "because the cellar isn't included", then it feels like "someone" is playing a bit "fast and loose". It could be an honest mistake (the original idea was to include the cellar), but you would hope they'd have corrected things by now if so.

However, if you saw (and were happy with) what you are buying, and there's a strong market for such apartments, then you probably don't want to be too "bullish" ... give them an opportunity to knock something off (or add in the cellar later) but you probably don't want to push it too far and risk losing the apartment.

As to who pays if you're successful: leave that to the seller and the agent to work out between them. Both are probably culpable to some degree, even if it's an honest mistake or failing to correct things in a timely fashion.

Answer 2

There is only one possible answer to a question where there is legal uncertainty about something that is probably the biggest purchase of your life, and where a mistake could mean you lose several years salary.

CONSULT A LAWYER

Do not take the word of anyone on the internet on something like this. Do not do anything shady to please the other party or to get round bureaucracy. The risks are too high.

Answer 3

If the catasto entry (cadastre in English) is wrong, they probably still need to split off the cellar from the apartment. How can they have done that if there's a problem with which cellar is actually the legal one? I don't think they have a "clean" title and you should delay the purchase. In the US, this is called a "clouded title." I certainly wouldn't purchase it without have a lawyer who specializes in property review the situation.

Answer 4

As a rule of thumb, you shouldn't sign a contract saying you are buying something when you are actually buying a different thing. It can make it hard to assert your ownership over the thing you did buy because, well, the contract technically doesn't say you own it.

You should also avoid signing documents with blank spaces for the obvious reason that anything can be put into these spaces later - but generally contracts are made in at least duplicate, so even if they alter their copy the alteration would be meaningless because your copy won't have it.

Sounds like you've already broken both of these rules, and now you are suffering for it: Well, that sucks. This is the point when you should go see a lawyer. You might be able to argue that since the contract doesn't mention the size, it is void. This would be great. Then you can ask them to write a new, accurate contract (have a lawyer check it) and sign that instead. That's the best option. If you're stuck with what you signed, you should at least figure out how much of a problem that is - for instance you might not be in compliance with your local regulations because of it.

You mention that due to the confusion with cellars described in the catasto, the sale is illegal. That means your contract is also worthless. Great! You can use this as leverage to roll back the whole deal, then tell them to sort everything out, and then sign it. If you're really impatient, at least get it in writing that they promise to rectify the catasto problem and how. But again, lots of legal pitfalls there, so simpler to just draw the line at "I'll only buy if documents are in order".

As for advertising, and what they told you before buying, being inaccurate - that's all irrelevant. They haven't misrepresented by that much, so you can't meaningfully claim false advertising, and presumably you saw the apartment you were buying. You only signed the contract, not the ad, so only what is in the contract matters. There is sometimes a concept of a "verbal contract", but when you already have a written contract you would have a hard time pursuing the verbal agreement angle in court: They will ask if you agreed to something, why didn't you put in the written contract?

So legally, it sounds like a headache. Regardless of how it turns out, learn a lesson from this and never enter into dubious agreements in the future, at least until you've consulted a lawyer. If a house has "complications", just move on - it's possible to get a great deal by buying a legally complicated house, and then fixing the problems for less than the discount you got, but very hard because the seller has much better information, and it's hard to estimate legal expenses. There's other good houses out there.

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For the financial aspect, firstly I'm assuming you offered 630k for 90 m2 so you are getting (630/90)*2=7k for 2 m2. This calculation is wrong: Unfortunately floor area is not a liquid, fungible good. When you buy a house, you buy the whole house, including floor area as well as holistic qualities such as view, neighborhood, etc. So price is not an exact linear function of area.

88 is so close to 90 that by itself it shouldn't make the price go from fair to unfair for you unless you started with an extremely precise mathematical pricing model. You also can't claim they misrepresented, since the seller can always say they "rounded up", with how small the difference is. Even 88 is probably something like 88.21 m2, rounded, no? And if not that, they can say it was a clerical error, since their firm likely handles many property ads.

But in your case the 2 m2 doesn't just come from a room being slightly wider, but a whole separate room that can be accessed externally. I think that's a lot more valuable than 630*2/90, so I would say that if the apartment plus cellar is worth 630k, an apartment with no cellar is worth much less. You say that you expected to pay 630k for no cellar, so this doesn't directly apply to you, but I thought it's worth noting.