12458 Renovation contracts and the Decreto Ingiuntivo

I thought it would be useful to summarise an article that we published in Italy Magazine a while ago. This information is aimed at those of you who are buying to renovate a property.

Some project designers and building contractors are reputable and very good at their trade. Some are not, however, and it is surprising to note how many foreign buyers often enter into verbal agreements with architects, works directors, engineers, builders and tradesmen, without carrying out a cursory check and simply believing what they are told. Even more alarming is the fact that some transactions are carried out without proper written agreements, invoices or receipts. It goes without saying that situations like these can quickly develop into potential nightmares if they are not handled correctly from the outset.

Verbal agreements, it should be stressed, may provide very limited means for seeking redress against shoddy, overpriced work or even fraud. Furthermore, e-mails are not always considered as sufficient evidence and Judges can question the use of e-mails as the basis for a binding contract, especially in the absence of signatures. The Italian judicial system is still coming to terms with the evolving electronic landscape with regard to contract law.

In one unfortunate case, a builder sued a foreign couple because they refused to pay his bill, arguing that the final amount far exceeded his initial estimate. The relationship between the client, architect/works director, agent and builder was such that again, no formal agreement had been drawn up between the parties.

After a number of preliminary hearings, the Judge ordered the defendants to not only pay the full invoice amount outstanding, but she ordered them to pay costs and interest as well.

The latter ruling involved a special process called a “procedimento di ingiunzione”. This is where summary judgments are used to collect outstanding debts. The process is normally very fast and a creditor can obtain a court decree without the debtor having to be present at the hearing (inaudita altera parte). All a creditor needs is written proof of his or her right to payment. This written proof need only come in the form of a simple invoice.

The mechanism used by the courts is called the decreto ingiuntivo. Simply put, this is the means by which the Judge orders a debtor to pay his or debt within a given timescale (40 days). The decreto ingiuntivo becomes effective after the 40 days. If the debtor fails to pay, enforcement proceedings begin to seize his or her personal assets. If the defendant disputes the debt, he or she must apply to set aside the judgment within the 40 days.

Be warned! Whereas Judges don’t normally concern themselves with the quality or quantity of work that has been carried out, they do decide on the basis of the debt that is owed according to the invoice. In many cases the defendant is made to pay first whilst the lawyers, in the meantime, gather all the evidence to argue who is right or wrong. Considering that the length of civil proceedings in Italy is, in most cases, excessive, where it is not uncommon for a case to last anything up to ten years, it pays to ensure that your rights and interests are fully assessed and protected.

To sum up, the success or failure of any renovation project not only hinges on your choice of Geometra/architect, works director and building contractor, it will also depend on how clear you are from the very outset and on the drawing up of a lettera di incarico professionale di progettazione (design agreement and letter of engagement) and binding renovation contract. No matter how trustworthy you feel your project designer and contractor are, don’t rely simply on handshakes and promises. Verbal agreements are hard to prove in court, especially if you don’t have witnesses or have anything in writing.

So, what precautions should you take? Apart from carrying out local checks to investigate the project designer’s and building contractor’s reputation, and quality of work, it is important that you seek proper legal advice. An experienced legal professional can carry out appropriate due diligence. This includes searches to check for solvency and licensing issues. Moreover, he or she will have a good understanding of the local planning laws, will inform you of your legal rights, and draft appropriate contracts containing relevant clauses about responsibilities, price, variations and timescales, in order to protect those rights.

Prevention is definitely better than cure, especially in a country where civil proceedings are not only costly, but also excessively long. And where, as in the case of disputes with builders or project designers in the absence of formal contracts, foreigners can be forced to pay up first and then file their defence in court afterwards.