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How to describe a property in the preliminary sale contract
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How to describe a property in the preliminary purchase and sale agreement. When we are faced for the first time with the sale or purchase of a house, a building, a commercial space, or any other type of real estate unit, sooner or later we will have to deal with the preliminary document.
In this article, we are not going to talk about "how to write a preliminary contract" (we have already talked about it in this article), but we are going to talk about how to describe a property in the preliminary contract. Specifically, we are going to analyze three criteria that are useful for describing the property in the preliminary.
We have literal description, cadastral description, and graphic/plan description.
"Literal description" how to describe a property in the preliminary of purchase and sale
The parties provide a non-technical description of the location and consistency of the property being bought and sold. This description takes precedence over the cadastral description. This description may also be contained in the contract because, contrary to the latter, the parties have immediate and personal knowledge of the former and are aware that the material description they provide corresponds to the property they know.
Recourse to cadastral data - which not only have a mere technical nature and are essentially preordained to the fulfillment of tax functions - is only subsidiary in nature, being only in the event of inadequate or inaccurate indications regarding the boundaries of the property being sold (Supreme Court ruling 9857 of 24 April 2007).
"Cadastral description" how to describe a property in the preliminary purchase and sale agreement
The property is identified by mentioning the cadastral data usually provided to the parties by their technicians or found by them in the individual purchase deeds. Such data (sheet, cadastral map, particles, and sub-parcels), although adopted as criteria for a complete description of the property promised for sale and although they constitute valid reference parameters, remain however subsidiary and subordinate to the literal description, unless the parties make exclusive reference to them for an exhaustive description of the property object of the contract and there is no contrast with what is reported (Cassation 26234 of December 2nd, 2005).
It should be pointed out that the areas mentioned in the cadastral surveys attached to the contract are not valid as a binding agreement between the parties and are therefore not suitable for qualifying the sale as "to measure" (Supreme Court ruling 9215 of 14 May 2004). The only case in which cadastral data take on legal relevance is that provided for in article 950 of the Civil Code, where they are expressly referred to as points of reference that the judge must bear in mind when the boundaries between two funds are uncertain and other elements for identifying them are lacking.
"Graphical/planimetric description" how to describe a property in the preliminary of purchase and sale
The graphic/planimetric description consists of the graphic representation of a plan of the property, using the reproduction of the boundaries. For a complete description of the property, a cadastral plan is attached to the preliminary contract, with which it is identified employing a colored perimeter of its boundaries.
This criterion, too, remains however subordinate to the literal description, unless the parties have expressly indicated it as the prevailing descriptive criterion: in such a case, the attached plan must not only be signed by the parties but also referred to in the preliminary contract or in the final contract (Cassation 5028 of March 5, 2007).
Only in this case, this type of description, as a textual element of the negotiation will, goes to build the primary data for the exact identification of the property transferred as its specificity leaves no room for uncertainty in the determination of its boundaries.