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Imagine the scene: an apartment in Rome, an open house and numerous visitors. Some are mentally measuring the living room; others are asking about the building’s management. One couple has already decided: this could be the right home.
Then comes the offer. They will need a mortgage, and the question follows naturally: “Can we make the purchase conditional on obtaining it?”
It is an important option to agree with the seller. But it involves two considerations that need to be understood together: the buyer’s protection and the competitiveness of the offer.
Protection that also affects negotiations
From the seller’s perspective, a conditional offer introduces a waiting period and uncertainty: the transaction still depends on the event specified in the clause.
If several offers arrive, with other terms being equal, the owner may prefer one with fewer financing uncertainties. Price, timing and handover arrangements may also influence the decision.
There is no absolute rule. An offer conditional on a mortgage may be preferred because of its overall terms. Nevertheless, a mortgage condition can reduce the buyer’s negotiating strength, particularly when several people want the same property.
The most useful response is to prepare the financing process before making an offer. Giving up protection simply to outbid others means accepting a risk that must genuinely be manageable.
Address the mortgage before finding the home
Anyone starting a search should understand their own funds, the amount they may be able to borrow and the overall costs of the transaction.
An early discussion with a bank or authorised operator can reveal potential difficulties and help organise documents. However, an initial positive response does not necessarily mean the assessment is complete: creditworthiness, the property offered as security and the actual financing terms all matter.
The practical question is: if the mortgage were refused, reduced or delayed, could I still honour my commitments?
If the answer is no, signing without suitable protection to make an offer more attractive can expose the buyer to significant financial consequences.
“Subject to a mortgage” does not explain everything
Under Italian law, a suspensive condition makes the effectiveness of the contract, or the provision concerned, dependent on a future uncertain event. A resolutive condition allows the contract to take effect immediately, with those effects ending when the agreed event occurs.
The distinction matters even when both clauses refer to financing.
The agreement needs to identify the relevant event: mortgage approval, signing the loan agreement or disbursement. It also needs an amount consistent with the buyer’s requirements, a realistic deadline and defined arrangements for communicating the outcome.
A clause limited to refusal because of problems with the property also has a different scope from one covering financing refused for other reasons.
A few words added to a form therefore deserve careful reading in the context of the whole agreement.
What two Court of Cassation decisions teach us
In order no. 17571 of 31 May 2022, Italy’s Court of Cassation examined a resolutive clause concerning financing refused because of planning and cadastral irregularities affecting the property. It upheld the decision bringing the preliminary agreement to an end and requiring repayment of the sums paid.
The case illustrates the importance of the risk precisely described in the contract and the available documentation. It does not establish that every mortgage refusal always produces the same result.
Order no. 243 of 7 January 2025, which also concerned financing through leasing, highlights another point: assessing responsibility requires a concrete examination of the parties’ conduct while the condition is pending, in accordance with good faith.
These cases offer a practical lesson: clear agreements and a documented process help prevent misunderstandings and establish responsibility.
Buyer, seller and agent: three responsibilities to coordinate
The buyer should apply promptly, provide complete information, retain communications and raise difficulties before deadlines expire. A bank’s delay should not be treated as an automatic extension of the parties’ agreement.
The seller should prepare relevant documents, allow agreed access for the valuation and disclose known issues. Waiting for financing does not, by itself, create a right to withdraw freely.
The estate agent must disclose circumstances known to them that affect the assessment and security of the transaction. In coordinating the process, the agent must also make deadlines, arrangements for funds and the links between stages understandable, involving the notary, lawyer and technical professionals where necessary.
Assessment of the financing remains with the bank and authorised operators. Clear roles help everyone make better-informed decisions.
Deposits and commission: clarify them in advance
Money handed over with an offer needs clear terms: who holds it, when it may be transferred to the seller, its legal function and how it is returned if the condition is not fulfilled.
Holding the funds with the agency can prevent premature delivery to the seller, but requires precise instructions. Likewise, repayment of twice a deposit should not be presented as the automatic result of any change of mind: the relevant legal requirements must be established.
For commission, article 1757 of the Italian Civil Code draws a clear distinction: where the contract has a suspensive condition, entitlement arises when that condition is fulfilled; where it has a resolutive condition, subsequent fulfilment of that condition does not remove an entitlement already accrued.
These consequences should be understood before signing.
A stronger offer starts with preparation
When several buyers are interested, being prepared can make a difference. It means understanding available funds, starting financing enquiries and proposing a workable timetable.
For ClouCasa®, supporting a purchase means helping people understand this balance, coordinating the property transaction with the work of the appropriate professionals.
The strength of an offer also depends on the ability to honour the commitments it contains.
Being prepared allows you to negotiate with greater credibility, without leaving such an important decision to the excitement of a viewing or the pressure of competing buyers.
Maria Ippoliti · ClouCasa®
Informational article: clauses and safeguards require an assessment of the individual agreement.