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EN
When we walk into an estate agency, hardly anyone asks whether the person welcoming us is qualified to work as an estate agent. We trust someone who listens, suggests a property and guides us through negotiations that may lead to the most important investment of our lives. Yet the question is far from marginal.
In recent years, the sector’s vocabulary has filled with consultants, advisors, specialists and local experts. These terms suggest competence, but do not necessarily tell clients what legal qualifications their contact actually holds. The problem is not the word “consultant”: a qualified agent naturally provides advice, and some technical or commercial advisory services do not constitute brokerage. The problem arises when a marketing label makes people with different functions, qualifications and responsibilities indistinguishable.
In law, what matters is not the title someone chooses, but the work they actually perform.
A profession with precise rules
Article 1754 of the Italian Civil Code defines a broker as someone who brings two or more parties together to conclude a transaction, without being connected to any of them by a relationship of collaboration, employment or representation. Access to and practice of the profession are also governed by Law No. 39 of 3 February 1989, which makes specific qualifications a requirement.
Training, an aptitude examination, integrity and professional requirements, Chamber of Commerce formalities and compulsory insurance are not bureaucracy for its own sake. They help protect people who entrust a professional with a decision of considerable financial and personal importance.
Legislative Decree No. 59 of 26 March 2010 and the Ministerial Decree of 26 October 2011 abolished the former register of business brokers and replaced it with registration and verification through the Business Register and the Economic and Administrative Index (REA). Abolishing the former register did not deregulate the profession or remove qualification requirements. The position of both the firm and the individuals actually carrying out brokerage must still be checked. The mere presence of a name in the REA, perhaps in a transitional section or under another capacity, should not be confused with proof of qualification and current practice.
This reveals a clear contradiction: while the legal framework seeks to make qualified operators transparent and identifiable, unclear marketing language can blur the distinction between qualified professionals and support staff.
When a consultant is actually acting as a broker
Imagine a buyer assisted by someone introduced as a consultant. That person suggests the apartment, discusses the price with the owner, and collects and passes on offers and counteroffers until an agreement is reached. The commission is then invoiced by a duly registered brokerage company.
This corporate arrangement is legitimate in itself. But what happens if the individual who conducted the entire negotiation does not meet the legal requirements for practising brokerage?
The answer cannot depend on formal labels alone. An ATECO business classification for consultancy or referrals does not, by itself, either establish or rule out unauthorised practice. The actual acts performed, the role in the negotiation and the person’s professional status must be reconstructed. If the individual performed only administrative and support tasks, that work is legitimate. If they carried out brokerage itself, the legal position changes substantially.
In the latter case, invoking the agency company’s proper registration or the fact that it issued the invoice is not enough. The firm’s authorisation is neither a shield nor a general licence for everyone working within it.
Support worker or agent: the Supreme Court’s criterion
An estate agency can certainly use unqualified support staff for ancillary, preparatory and instrumental tasks. In its judgment No. 19115 of 25 September 2015, the Italian Supreme Court referred to the substantive nature of the work performed to distinguish legitimate support from activities reserved to qualified brokers.
The distinguishing criterion is the performance of externally relevant brokerage acts capable of bringing the parties together, influencing the negotiation and committing the company. Case law distinguishes those activities from purely internal or ancillary tasks carried out under the direction of the people properly appointed to conduct brokerage.
Organising appointments, preparing information sheets or obtaining technical and cadastral documentation are operational support tasks. Simply accompanying someone on a viewing, without negotiating, must also be distinguished from the broader work of selecting and introducing parties, promoting the transaction and directing the financial negotiation.
When someone independently manages negotiations or participates in forming the agreement between seller and buyer, calling them a “support worker” or “consultant” does not exempt their work from the mandatory rules of Law No. 39/1989. Likewise, having a qualified legal representative or appointed manager does not remove the need to check that everyone else actually conducting brokerage for the company is also qualified and registered.
What matters is not how many collaborators an agency has, but the functions assigned to them and who actually handles the transaction.
Commission does not depend solely on the sale’s outcome
This distinction has direct financial consequences. Article 1755 of the Italian Civil Code links entitlement to commission to a transaction concluded as a result of the broker’s intervention. That general principle must be read alongside Article 6 of Law No. 39 of 3 February 1989, which reserves entitlement to commission to those properly registered to practise brokerage.
Completion of a sale does not therefore eliminate possible challenges to the legitimacy of the fee. Naturally, not every contact with an unqualified support worker automatically causes the brokerage company to lose its entitlement. The actual contribution that brought the parties together must be established. However, if the entire transaction was brokered by an unqualified individual, the claim to payment may fail.
The point is clear: entitlement to payment cannot be separated from compliance with the rules governing the profession.
At completion, the individual does not disappear behind the company
At the notarial deed, transparency about brokerage is more than good commercial practice: it is a specific legal obligation. The relevant framework is Article 35 of Decree-Law No. 223 of 4 July 2006, converted into law, with amendments, by Law No. 248 of 4 August 2006.
Article 1(48) of Law No. 296 of 27 December 2006, the 2007 Budget Law, substantially amended the original decree by replacing paragraph 22 with paragraphs 22 and 22.1. At the transfer of a property, including a transfer subject to VAT, the parties must make a declaration in lieu of an affidavit under Presidential Decree No. 445/2000, specifying both the detailed methods of payment of the price and whether they used a broker.
The central element of the amendment is paragraph 22(a). If a broker was used, the parties must identify the individual business owner or, where a company acted, its name and the identifying particulars of its legal representative or of the broker who acted for the company without being its legal representative. They must also provide the tax code or VAT number under subparagraph (b) and the relevant Chamber of Commerce registration particulars for the individual owner, legal representative or broker who actually acted for the company under subparagraph (c). Identifying only the firm that issued the invoice does not therefore complete the required declaration: the law requires the qualified individual who acted for the corporate structure to be identified.
Article 22 of Law No. 203 of 13 December 2024, effective from 12 January 2025, subsequently replaced Article 35(22)(d) of Decree-Law No. 223/2006. The parties may now declare either the amount spent on brokerage or, alternatively, the number of the broker’s invoice and confirmation that the invoiced amount corresponds to the expense actually incurred. In all cases, detailed methods of payment must still be stated.
These provisions do not make every agency collaborator the broker to be named in the deed. They require accurate identification of who actually conducted brokerage and truthful information consistent with the facts to be supplied to the public official.
The notary’s reporting obligation
The amendment introduced by Article 1(48) of Law No. 296 of 27 December 2006 inserted paragraph 22.1 into Article 35 of Decree-Law No. 223/2006. It provides that, where the registration required under Law No. 39 of 3 February 1989 is absent, the notary must submit a specific report to the competent Revenue Agency office. The reference to the former register must now be read alongside the Business Register and REA system.
This obligation needs to be understood correctly. The notary is not required to investigate every preliminary contact between the parties before completion: the parties make their declarations under their own responsibility.
However, if discrepancies emerge during preparation of the deed between the documentation and the identity or qualifications of the person who actually acted for the agency, they cannot be ignored. They must be clarified before signing, so the parties can make lawful declarations and the notary can properly fulfil the duties of office.
Declarations and liability: separate issues
Article 35(22.1) of Decree-Law No. 223/2006 establishes a strict penalty framework. Omitted, incomplete or false particulars under paragraph 22 attract an administrative penalty of €500 to €10,000. For registration tax purposes, the transferred property becomes subject to value reassessment under Article 52(1) of the Registration Tax Consolidation Act, Presidential Decree No. 131 of 26 April 1986. This removes protection from reassessment under the cadastral “price-value” regime where that regime would otherwise apply. False declarations in lieu of an affidavit can also expose the declarant to criminal liability under Article 76 of Presidential Decree No. 445 of 28 December 2000.
The parties’ liability for their declarations remains distinct from the notary’s duties of office. Any professional or disciplinary liability of the notary depends on the specific conduct in relation to the information available. The declaration requirements concerning brokerage are therefore substantive safeguards of legality and tax transparency, rather than standard clauses without practical effect.
Transparency should begin at the first meeting
If the broker’s identity and qualifications matter so much at completion, why should the client consider them only when sitting before the notary?
From the first agency meeting, sellers and buyers should be able to distinguish the qualified estate agent from support staff, know which firm is responsible for the instruction and understand the basis for entitlement to commission. Asking for the name, professional capacity and Chamber of Commerce registration details (REA) of the person and the firm, which can be checked through a Chamber of Commerce extract, is normal diligence rather than distrust.
Behind a property transaction may lie a lifetime’s savings, an inheritance, a separation, a thirty-year mortgage or a family’s plans.
Since 1994, my professional experience has been intertwined with the stories of the people who entrust me with a property. Over those years, I have seen almost everything change: property portals, technology, communication, clients’ expectations and the organisation of agencies. One thing should never change: awareness of professional responsibility.
Understanding the legal framework protects both those who work honestly in the sector and the public who rely on them. Collaboration between different roles is valuable when responsibilities remain clear. Commercial innovation improves the service, but cannot replace the qualifications required by law.
It does not matter whether “consultant”, “advisor” or “agent” sounds more modern today. What matters is that the name is backed by the skills, qualifications and responsibilities appropriate to the work actually performed.
A commercial title can be chosen. A professional qualification must be earned. Responsibility must be accepted.
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