A clearly visible stain on a wall of a flat is not enough for the buyer to be prevented from bringing an action against the seller to recover damages for the costs incurred in rectifying the defect: it may be a simple effect of condensation, but it may also be the sign of a seepage discovered only after the purchase. In the latter case, the buyer may take action against the seller and it cannot therefore be argued that the defect was known because it was obvious.
This is the principle affirmed by the Supreme Court in its judgment 16628 of 27 May 2026, concerning the sale of a property affected by serious structural problems: after the deed, the buyer, contesting the sloping of the floors, had complained about the existence of defects in the building, requesting the termination of the sale, the restitution of the price and compensation for damages suffered. According to the seller, however, the warranty for defects should have been excluded precisely because of the obvious slope of the floors as it was a clearly perceivable anomaly, all the more so because the buyer had visited the property before the purchase and had also availed himself of technical advice.
The Court of Cassation rejected this reasoning, observing that theslope of the floors was not the defect, but only its most conspicuous symptom. Rather, the actual defect consisted in the overall rotation of the building in the upstream-downstream direction, with consequences not only on the normal functionality of the building, but also on its static safety. It is one thing, therefore, for a floor not to be perfectly level; it is quite another to know that that inclination depends on a structural phenomenon of the entire building.
Here lies the crux of the decision: according to Article 1490 et seq. of the Civil Code, not every visible anomaly permits the conclusion that the buyer was aware of the defect or that the defect was easily recognisable; instead, it is necessary to verify whether the perceivable datum was actually capable of revealing the deformity in its actual substance.
The Principle
The Court distinguished, in essence, between the external sign and the material defect that affects the fitness for use or value of the thing sold: in the case decided, the slope of the floor could abstractly depend on different causes such as a defect in the flooring, a difference in level that could be remedied by remedial works, or, as later emerged, a more serious structural alteration. For this reason, the guarantee could not be excluded by referring only to the visibility of the slope.