Estate agent commission in Italy: who sets it, who pays

What the law actually says

The definition comes first. Article 1754 of the Civil Code calls an agent (mediatore) someone who puts two or more parties in touch to conclude a deal without being tied to any of them by collaboration, employment or representation. That independence is the basis of the commission.

Article 1755 then sets the rule on the fee:

• the agent is entitled to a commission from each party if the deal is concluded because of the agent’s intervention;
• the amount, and the proportion each party bears, are those they agreed; failing agreement, those given by professional tariffs or local usage; and failing those, the judge sets them in fairness.

Law 39/1989, article 6, adds that where there is no agreement, the amount and split are determined by the chamber of commerce boards “taking local usages into account”. The key phrase for a foreigner is “local usage”: the customary fee in a seaside town, a mountain village and a large city may differ, and I found no official published percentage in any source I read. If a website gives you a figure as the legal fee, it is wrong. Likewise the “0.5 to 1%” you may see quoted for auction purchases is a notary’s fee in notarial auctions, not an agent’s rate.

Who owes it, and when

The wording of article 1755 means that in principle both the buyer and the seller can be asked to pay. In practice, the mandate or the proposal form says who pays what, which is why you read it before signing. The fee is due when the deal is concluded because of the agent’s work; a contract that is not concluded generally gives no commission under that wording. Because the legal text does not fix when a particular contract counts as concluded, the date and conditions should be written into the agent’s form: ask whether the commission is due at the signing of the preliminary contract or only at the deed, and what happens if the buyer withdraws.

An agent also owes duties. Article 1759 requires the agent to tell the parties the circumstances known to them that bear on the value and safety of the deal. If an agent knows of a defect, a planning problem or a dispute and says nothing, that duty is the legal starting point for a complaint.

Who may act as an agent

The old register (ruolo) of agents was abolished by article 73 of D.Lgs. 59/2010. Today the activity begins with a certified start-of-activity notice (SCIA) filed with the chamber of commerce through the municipality’s one-stop shop. The chamber checks the requirements and enters the data in the business register (or, for individuals, in the economic and administrative repertory, REA), assigning the qualification of “intermediary”. References in Law 39/1989 to the old roll mean those register entries.

Law 39/1989 also makes the activity incompatible with certain other roles, such as being an employee of a business in the same sector, with a carve-out for staff of credit-intermediation firms. An agent who uses standard forms with the contract conditions must deposit a copy with the competent commission beforehand. The practical lesson is to ask for the agent’s register entry and to read the form: Payotte does not rank or vouch for agents, and you check the entry yourself on the business-register search of the chambers of commerce. I could not confirm what the free search displays, so do not assume the “intermediary” qualification is visible there.

What the notary checks

The Notariato’s checklist asks the buyer for the agent’s details with the agreed fees, and a copy of the means of payment of the amount already paid. The Notariato also says the notary must verify the rules on anti-money-laundering, traceability of payments and commissions paid to any real estate agency. In short: pay the commission by a traceable method, keep the proof, and expect the notary to ask for it.

What to negotiate

Because nothing is fixed, everything is negotiable, and the form should say:

• who pays (buyer, seller or both) and how much, in euros or as a percentage of the price;
• when the fee falls due and on what event;
• the length of any exclusivity and what happens if you sell by yourself or through another agent;
• what the agent will do (valuation, photographs, viewings, drafting of the offer, checking documents).

Compare two or three written quotes. Ask the agent which documents they check before listing, because the list in the documents guide is the seller’s responsibility. For the seller’s overall path, see selling property in Italy.

Which professional to consult

A real estate agent is the person you are negotiating with. Before you sign a mandate or a proposal form, a notary can explain how it ties into the preliminary contract and deed, since the Notariato advises contacting the notary before signing any proposal or preliminary contract.