Real Estate Agent: When Is the Commission Due?

The right to a commission for a real estate agent is not automatic. The law requires mandatory registration in a special register. Discover why this is essential and what you risk if you rely on an unlicensed operator.

Buying a house is one of the most important steps in a person’s life. It’s a complex process filled with technical, legal, and bureaucratic aspects that often lead people to seek help from a professional: the real estate agent. Known also as a mediator, the agent’s job is to facilitate meetings between buyers and sellers and guide them toward closing the deal. Because the agent plays such a delicate role, the law strictly regulates their activity, establishing clear rights and duties.

One very common question after a negotiation ends is: When is the commission due to the real estate agent? The answer lies in a set of regulations and court rulings designed to protect customers and maintain professional standards.

Who Is a Real Estate Agent and What Do They Do?

To understand the agent’s rights and responsibilities, it helps to start with their legal definition. The Civil Code describes a mediator as someone who brings two or more parties into contact for a deal, acting independently and without any ties of dependence or representation to either party (Article 1754 of the Civil Code). The core feature of the mediator is impartiality: they work to reach an agreement fair to all involved.

The agent facilitates communication, manages negotiations, and provides support up to signing.

Example:

Mario wants to sell his apartment and contacts an agency. The agent, Tizio, finds a buyer, Laura, and helps them agree on a price, organize viewings, and gather documents—acting as a bridge between their needs.

Do You Need a License to Be a Real Estate Agent?

Real estate mediation is not an activity anyone can do without authorization. To ensure competence and protect consumers, the law requires registration in a special register maintained by the Chamber of Commerce (Law 39/1989). Without this registration, the agent has no right to the commission, which is the payment for their work.

The rules have been updated over time (Legislative Decree 59/2010). Registration now takes place in the Business Register or the REA (Economic and Administrative Repertory), following official notification and verification by the Chamber of Commerce.

Example:

If Tizio completes the sale between Mario and Laura but isn’t registered, neither party is legally required to pay him a commission.

What If the Assignment Comes from Only One Party?

Often, agents receive assignments only from the seller—called “atypical mediation” because it deviates from the classic impartial model. For a long time, courts disagreed on whether registration was necessary in these cases. Some rulings said no; others said yes.

The Supreme Court’s United Sections clarified the matter in 2017: Anyone performing mediation must be registered, regardless of whether they represent one or both parties. Even an atypical mediator must be registered to claim commission.

Example:

Mario signs an exclusive sale agreement with Tizio’s agency. If Tizio isn’t registered, he cannot legally demand payment after finding buyer Laura.

What Information Must the Real Estate Agent Provide?

The mediator’s role doesn’t end with finding a buyer. The law imposes a duty to inform both parties of all known or knowable facts that could affect their decision to buy or sell (Article 1759 of the Civil Code). This obligation follows principles of fairness and good faith.

The agent must:

Provide all relevant information they know or can find through professional diligence.
Avoid giving false or unverified information. If uncertain, they must clearly say so or remain silent.

Does the Agent Need to Verify the Property’s Urban Planning Compliance?

A professional agent should check key technical and legal aspects, especially the property’s compliance with building regulations and cadastral maps. A property with illegal modifications or discrepancies may not be saleable before a notary (Article 29, Law 52/1985).

The agent cannot just rely on the seller’s generic assurance; they must examine documents and compare with the property’s actual state.

Example:

Agent Tizio markets an apartment with an enclosed veranda. Even if Mario assures him it’s legal, Tizio must verify the permits. Failing to do so risks misleading the buyer Laura and blocking the sale.

What Are the Responsibilities of a Negligent Mediator?

If the mediator provides inaccurate information or hides facts they should have known, they can be held liable. The buyer harmed by such negligence may:

Refuse to pay the commission.
Claim compensation for damages caused by misinformation (Cass. n. 6926 of 2012).

Example:

Laura signs a preliminary contract but later learns the veranda is illegal and cannot be legalized. If Tizio neglected his duty to inform, Laura doesn’t owe commission and can sue for damages, like losing her deposit.

Can a Contract Clause Exempt the Agent?

Sometimes, purchase forms include clauses shifting responsibilities, such as requiring buyers to update systems to legal standards. However, these clauses do not exempt the agent from their duty to inform about known or easily discoverable issues.

Courts have ruled that such clauses cannot protect agents who omit crucial facts affecting safety or legality (Court of Milan, 2019).

What Happens If the Real Estate Listing Is Inaccurate?

The agent is also liable for misleading advertising. If an ad creates false expectations—like stating an elevator is available when the apartment doesn’t have access—the agent must clarify.

Failure to do so can lead to ordered compensation equal to the cost of obtaining the missing right (Court of Milan, 2016).

Does the Agent Need to Verify the Occupancy Permit?

Yes. The certificate of occupancy, confirming compliance with health and building codes, is vital. While its absence does not prevent sale, it can reduce value and cause risks for the buyer.

It’s the agent’s duty to verify its existence and inform the buyer accordingly.

What Are the Limits of the Mediator’s Liability?

The mediator is not a private investigator or a notary. They are not required to perform deep technical checks such as searching for mortgages or foreclosures in land registers (Cassation 2017).

Their duty is limited to reasonable checks typical of their profession, focusing on visible conformity and essential documents.

Can the Agent Trust What the Seller Says?

No. Even if the seller guarantees in writing that everything is in order, the agent must verify suspicious facts. Professional diligence means investigating potential red flags, not blindly trusting the seller.

Example:

If the seller claims the studio apartment meets minimum legal size, but the agent suspects otherwise, they must investigate to avoid negligence.

What If the Mediator Is a Company?

Companies can also act as mediators but must be registered themselves or have a registered legal representative. Registration of an individual alone does not qualify the company. Only registered natural persons can carry out mediation duties.

If the Buyer Does Their Own Checks, Is the Agent Responsible?

If the buyer performs their own due diligence through trusted experts, the agent’s responsibility for undisclosed facts may be reduced or excluded. The buyer assumes the risk by relying on their own professionals.

What If the Agent Works for Only One Party?

When the agent is formally appointed by only one party (usually the seller), they are a “mandated mediator” and act primarily for that party. Their commission is due only by their client, not both parties (Cass. No. 482 of 2019).

They may still claim damages from the other party if that party knowingly benefited from their work.

Does the Exclusivity Clause Make the Agent Partial?

Exclusivity clauses protect the agent’s investment of time and resources by preventing the seller from using multiple agencies. Even with exclusivity, the agent must act fairly and transparently toward the buyer.

The client can still change their mind and refuse to sell, even if the agent has found a buyer. When Does the Agent’s Right to Commission Start?

The commission is due as soon as the agent’s intervention leads to the conclusion of a legal obligation between the parties, typically the signing of the preliminary sales contract (the “compromise”).

This right remains even if:

One party later withdraws.
The preliminary contract allows the buyer to withdraw.
The seller was not the sole owner but committed to acquiring ownership. The key is that the agent’s work caused the parties to enter a binding agreement.

What If the Buyer Is Different from the Negotiator?

If negotiations are done by one person but the property is registered to another (e.g., a parent negotiating for a child), the agent still earns commission if the deal results from their work. The final buyer’s identity doesn’t matter as long as the sale is a direct consequence of the mediation.

Does the Agent Get Paid If the Parties Reach an Agreement on Their Own?

The commission depends on the causal link. If the agent introduced the parties and created the necessary conditions for a deal—even if the parties then negotiate alone—the agent is entitled to commission.

If the parties later meet after a break and conclude a deal with no connection to the agent’s original work, the commission is not due.

VGS Family Lawyers is a law firm that offers assistance to English-speaking clients with interests in Italy. In case you need assistance, please write to: info@vgslawyers.com.

Real Estate Agent: When Is the Commission Due?