Occupied property at auction: who vacates it, how long it takes and who pays

The appraisal report (perizia) must state the property's possession status. If third parties occupy it, it must state on what basis, paying attention to leases registered before the seizure (pignoramento) (art. 173-bis disp. att. c.p.c.). Look for a section called “stato di possesso” or “stato di occupazione.” The notice of sale (avviso di vendita) and the listing on the Public Sales Portal also state whether the property is vacant or occupied.

The problem is timing. The report describes the situation on the inspection date, which may have been one or two years before the auction. The debtor may have left in the meantime, or a relative may have moved in. The custodian is the up-to-date source. Ask who occupies the property today, whether a vacating order has already been issued and how far it has progressed. There is a separate guide to viewing and dealing with the custodian: court custodian and property viewing.

This guide concerns property enforcement proceedings (procedura esecutiva). In judicial liquidation (liquidazione giudiziale, formerly bankruptcy), the liquidation program sets the rules on reductions, sale attempts and vacating (art. 216 CCII); notarial auctions by public bodies follow the call for bids (bando) (see notarial auctions). There the supervising judge orders vacating and the trustee carries it out. The debtor's home, to the extent necessary, remains available for the debtor and family to live in until the sale (art. 147 CCII).

The Cartabia reform rewrote art. 560 c.p.c. The new rules apply to proceedings where seizure was served after February 28, 2023; older proceedings follow the previous rules and the judge's order.

The seizure service date matters, not the year in the R.G.E. case number. In practice, proceedings with an R.G.E. number from 2024 onward follow the new rules. For 2023 R.G.E. cases, ask the sale delegate (delegato alla vendita). Properties from proceedings started before 2023 are still for sale on the portal, so it is worth asking.

Under the new rules, the debtor and family members living with them do not lose possession until the transfer decree (art. 560, third paragraph, c.p.c.). Meanwhile they must care for the property diligently and allow prospective buyers to visit, under the custodian's supervision.

The judge orders a property occupied by the debtor vacated in an order issued with the transfer decree. After hearing the parties and the custodian, the judge may do so earlier in three cases: if the debtor obstructs visits or the work of court assistants; if the property is not protected or kept in good condition; or if the debtor breaches other legal obligations.

For you as buyer, this means that the debtor may still be inside on the day you become the owner. Vacating starts then.

The situation differs where the debtor does not live in the property, or where an occupant has no right enforceable against the buyer: a former tenant with an expired lease, a relative without a contract, or an unlawful occupant. Here the judge orders vacating no later than the sale order (art. 560, seventh paragraph). By auction day the property may therefore already be vacant, or vacating may have begun. Ask the custodian whether the order exists and has been carried out.

Art. 2923 c.c. determines which leases an auction buyer must honor. The criterion is the lease's certified date, which must precede the seizure.

A certified date can be established, for example, by registering the lease with the Agenzia delle Entrate. Take a seizure in March 2024 and a 4+4 lease registered in September 2023, with rent of €650 per month for an apartment that rents for €700 locally. The lease is enforceable. You buy an income-producing property, but cannot live there until it expires. At €300 rent against a €700 market value, the rent would be more than one third lower and you could choose not to honor it. The judge assesses the fair price: if the tenant disputes it, you need a lawyer.

An enforceable 4+4 lease does not end with the auction. At the first expiration you may deny renewal only for the reasons in art. 3 of L. 431/1998, for example to live there yourself or house a close family member, with at least six months' notice. Without one of those reasons the lease renews for another four years.

Until the transfer decree, rent belongs to the proceedings because seizure includes the property's income (art. 2912 c.c.). The custodian collects it and administers the property with the judge's authorization. From the decree onward, you collect it. Ask the custodian for the lease details, the tenant's payments and any security deposit.

An enforceable lease is not necessarily a problem. If you buy as an investment, a paying tenant is an advantage. It becomes a problem if you want to live there and the lease expires in five years.

An order assigning the family home to one parent can be recorded and enforced against third parties (art. 337-sexies c.c.). Typically, however, a bank holding a mortgage requests the sale, and the relevant comparison is with the mortgage date. If the bank registered its mortgage before the assignment was recorded, the Court of Cassation holds that the assignment cannot be enforced against the bank and the property is sold vacant (Cass. 7776/2016). If the notice instead sells the property subject to a right of residence, that right remains enforceable against you (Cass. ord. 10686/2024). Read how the notice describes the property and seek a lawyer's help.

Relatives using the property under a free loan (comodato), occupants with a preliminary sale contract that was never completed, and cohabitants: the report describes these situations under possession status. A free loan and a preliminary contract are not leases. As a general rule they cannot be enforced against the winning bidder, and the judge orders the property vacated. Check how the report classifies them and ask the custodian how the proceedings have treated them.

The custodian carries out the vacating order (ordine di liberazione) under the judge's instructions. This is done without the formalities of enforcement for delivery (art. 605 et seq. c.p.c.), even after the transfer decree, in the winning bidder's interest and at no cost to them (art. 560). The judge may authorize the custodian to use law enforcement and appoint assistants, such as a locksmith.

Furniture left inside is a separate matter. The custodian orders the person leaving to remove it within at least thirty days, unless urgent. If they do not, the items are considered abandoned and the custodian arranges their disposal or destruction, unless the judge orders otherwise.

You may release the custodian from this duty, for example because you reached an agreement with the occupant. If the agreement then falls through, you must pursue enforcement for delivery at your own expense. The transfer decree is the title: it contains the order to surrender possession and is enforceable (art. 586). The Tribunale di Ancona's model order states clearly that, if the custodian is released, enforcement proceeds exclusively under art. 605 c.p.c. at the winning bidder's initiative and expense. Read the notice to see whether and by when you must declare that you want the custodian to vacate the property or release them from that duty. Before releasing the custodian, wait until you have the keys.

Under the new rules, the law sets no deadline for carrying out the vacating order. It depends on the custodian, court and occupant. A cooperative debtor may hand over the keys in a few weeks. A family with minors, a resisting occupant or a property full of furniture can take months and require several visits.

For older proceedings the previous wording of art. 560 generally applies. After service of the transfer decree, the custodian carries out delivery at the winning bidder's request, between sixty and 120 days after the request. Without a request the custodian does not proceed. A circular of the Tribunale di Pistoia requires it no later than approval of the distribution plan: submit it with the balance payment. Awards before 2020 are subject to still different versions of the rule, and court circulars differ. Ask the delegate which rules apply.

There is also a way to enter earlier. If the order allows payment in installments, the judge may authorize a winning bidder who requests it to take possession immediately after the award. An independent, first-demand guarantee of at least 30% of the price is required (art. 574 c.p.c.). Ask the delegate whether the order allows installments.

The appraiser must already reduce the valuation for possession status (art. 568 c.p.c.), but that reduction does not know what waiting costs you. Calculate it using your own numbers. If you buy for €145,000 with a mortgage and the property remains occupied for six months after the decree, you pay six installments without living there, and perhaps rent as well. If you buy to rent it out, that is six months of lost rent. Add uncertainty: an occupant who does not leave can delay renovation by a year.

Two practical cautions. Before the auction, ask your bank whether it finances occupied property and on what timetable; the guide to auction mortgages explains the rest. Do not pay anyone to “convince” the occupant to leave early: if an agreement is needed, go through the custodian and a lawyer.

• Whether the proceedings started before or after February 28, 2023, and therefore which vacating rules apply.
• Who occupies the property today and on what basis.
• If there is a lease, its registration date, expiration date and rent.
• Whether a vacating order has already been issued and carried out.
• Whether the occupant has allowed or obstructed visits.
• Whether furniture, animals, vulnerable people or minors are present.
• How long the court has taken in similar cases to vacate a property after the decree.

On ImmobilScan, each public property listing states whether it is vacant or occupied when the portal or notice provides that information. With an account you can have the report and notice analyzed and find what the documents say about occupancy in a panel, with the document and page for each item. Only the custodian knows the current situation.