Vacating an occupied property: how to obtain possession after the auction
A property bought at auction may be vacant or occupied. If it is occupied, vacating it is neither automatic nor immediate. It depends on who occupies the property, on what basis and since when. The difference between a property occupied by the enforcement debtor and a property let to third parties under a lease registered before the attachment is the difference between a few months’ wait and years of being unable to use the asset. Checking the occupancy status before bidding is not a piece of advice: it is a duty of minimum prudence.
Occupation by the debtor vs occupation by third parties
The type of occupant determines the timescales and procedures for vacating. The legal distinction is clear-cut and the practical consequences are profoundly different.
Occupation by the enforcement debtor. A debtor who continues to occupy the attached property has no title enforceable against the procedure. Since the Cartabia reform, art. 560 c.p.c. distinguishes two scenarios in time. If the property is lived in by the debtor and their household, the release order is issued by the judge together with the transfer decree (art. 560 c.p.c., eighth paragraph, and art. 586 c.p.c.); the debtor keeps possession until the decree. If, on the other hand, the debtor does not live in the property (e.g. attachment of a second home) or breaches the obligations relating to custody (prevents viewings, damages the asset), the release order is brought forward to the moment the judge orders the sale (art. 560 c.p.c., seventh and ninth paragraphs): vacating can therefore be completed even before the transfer decree.
From the moment the order is issued, the successful bidder is entitled to obtain vacant possession. If the debtor does not leave the property voluntarily, the court-appointed custodian proceeds directly with forced entry in the manner described below.
In practice, many debtors leave the property voluntarily after notice of the transfer decree, or even earlier, after the award. The debtor knows that the procedure is over and that resisting has no legal basis. An amicable agreement — direct dialogue or dialogue mediated by the custodian — is the most frequent and quickest outcome. The delegate or the custodian can facilitate communication and agree a reasonable deadline for handing over the property. Forced eviction is the last resort, used when the debtor refuses to leave the property despite the judge’s order.
Occupation by third parties without enforceable title. A third party occupying the property without an enforceable contract (e.g. a relative of the debtor, a partner, a de facto occupant, a tenant with a lease that is unregistered or registered after the attachment) has no title enforceable against the procedure. Since the Cartabia reform, in this case the release order is issued when the judge orders the sale (art. 560 c.p.c., seventh paragraph), not with the transfer decree. The custodian can start the vacating procedure immediately after the sale order; the property may therefore already be vacant at the time of the award or shortly afterwards, without waiting for the decree.
The distinction between “relative of the debtor” and “third party with a contract” is crucial. The debtor’s adult child who lives in the property without a contract is an occupant without title: treated exactly like the debtor. A tenant with a lease registered a month after the attachment also has no enforceable title: the lease is valid between the parties but cannot be enforced against the enforcement proceedings.
Occupation by third parties with enforceable title. This is the situation that radically changes the economics of the purchase. A lease registered before the registration of the attachment is enforceable against the enforcement proceedings and against the successful bidder. In this case the transfer decree does not order vacating. The property remains let until the natural expiry of the lease. If the lease runs for 4+4 years and 5 years remain, the successful bidder acquires ownership but not the use of the asset for 5 years. The tenant still owes rent, but on the terms of the original lease (which may have been agreed at a below-market rent, especially if the debtor let the property to relatives or acquaintances in anticipation of the procedure).
Enforceable leases: the critical caveat
The subject of enforceable leases deserves a closer look because it is the most insidious situation for the buyer and the one most often underestimated.
Art. 2923 c.c. (Civil Code) distinguishes two regimes based on the length of the lease. For leases of up to nine years, the lease is enforceable against the procedure if it has a certain date prior to the registration of the attachment. Registration with the Revenue Agency is the standard way to obtain a certain date, and it is the practical reference in most cases. For leases of more than nine years (typical of commercial leases and some agricultural leases), the lease must instead have been registered in the land registers before the attachment. An unregistered lease of more than nine years is enforceable against the successful bidder only within the limit of the first nine years from the start of the lease (Court of Cassation 111/2003).
In short: for ordinary residential leases (4+4 or 3+2) what counts is the date of registration of the lease vs the registration of the attachment. For long commercial leases (6+6, non-residential use) also check that the lease has been registered in the land registers, not just with the Revenue Agency. The appraisal report does not always make the distinction: if you find a long lease on a commercial property, ask the delegate for confirmation or consult the land registers directly.
In the appraisal report the expert states the date of registration of the attachment and the occupancy status of the property. If the report indicates an enforceable lease, the practical consequences are: the successful bidder takes over the landlord’s position (art. 2923 c.c.), the tenant stays in the property and pays rent to the successful bidder, the successful bidder cannot demand vacant possession before the natural expiry of the lease, and the rent is the one set in the original lease.
The appraisal report does not always clearly distinguish between enforceable and non-enforceable leases. If the occupancy status is not explicitly clarified, check directly before filing your bid: ask the court-appointed custodian about the current situation, consult the registration note of the attachment at the Conservatoria (today the Ufficio di Pubblicità Immobiliare, the property registration office), and check the registration date of the lease with the Revenue Agency.
An additional safeguard: art. 2923, paragraph 3, c.c. provides a specific exception to the principle of enforceability for leases at a “derisory rent” (canone vile). The successful bidder can free themselves from the obligation to honour a lease pre-dating the attachment if they show that the rent is more than one third below the fair market price or the rent resulting from previous leases of the same property. Recent case law is settled on the point (Court of Cassation 9877/2022, Court of Cassation 23508/2022): leases at a token rent with relatives or acquaintances in anticipation of the procedure, even if they pre-date the attachment and are duly registered, can be declared unenforceable by the judge at the request of the successful bidder.
Checking enforceability is therefore not just a comparison of dates. When the rent reported in the appraisal is significantly below the market rental value of the area, there is a technical route to request a declaration of unenforceability and obtain vacant possession. The judge can rely on any kind of evidence: comparison with other leases in the area, market values, any sublease at a higher rent. If you find a rent in the appraisal that is clearly out of line with the market, point this out to the delegate and assess with a lawyer whether the action is viable.
How to check the occupancy status before bidding
Checking the occupancy status is part of pre-bid due diligence. There are three sources of information, and you should use all three.
The appraisal report. The section on occupancy status states whether the property is vacant, occupied by the debtor or occupied by third parties and, in the latter case, whether the title is enforceable. Read this section with particular care; do not stop at the description of the asset and the price. Look for the dates: the date of registration of the attachment and the registration date of any lease.
The court-appointed custodian. The custodian is appointed by the judge to manage and preserve the property (art. 559 c.p.c.). They know the current actual condition of the property, know who occupies it, have the keys (or know who has them) and have carried out periodic inspections. Contact the custodian before the viewing and ask for up-to-date information on the occupancy status. The custodian’s contact details are in the notice of sale. The custodian is the most up-to-date source: the appraisal may date back months or years, but the custodian knows the current situation.
Viewing the property. During the viewing you check in person who occupies the property and what condition it is in. If the property is occupied, the viewing is arranged by the custodian with the occupant. Look at the condition of the property: a property occupied by a debtor who keeps it in good condition is a different situation from a property occupied illegally and vandalised.
If the appraisal shows a lease and you want to check whether it is enforceable, request: the registration note of the attachment (from the Conservatoria or through a mortgage register search) and the registration date of the lease (Revenue Agency, competent local office). Comparing the two dates is the only certain way to determine enforceability.
The judge’s release order
The release order is issued by the judge ex officio: you do not need to request it separately. Since the Cartabia reform, art. 560 c.p.c. sets the time of issue according to the occupancy status: for properties lived in by the debtor and their household, the order is issued together with the transfer decree (art. 586 c.p.c.); for properties not lived in by the debtor or occupied by third parties without enforceable title, the order is brought forward to the moment the judge orders the sale.
The Cartabia reform (Legislative Decree 149/2022, applicable to proceedings started from 28 February 2023) rewrote art. 560 c.p.c. and substantially changed how the release order is carried out. The current rule is simple: the court-appointed custodian carries out the release order directly according to the instructions of the enforcement judge, without following the formalities of arts. 605 et seq. c.p.c. No writ of demand (atto di precetto), no prior service by a bailiff as the main channel. The custodian contacts the occupant, sets the deadline for vacating and, in case of refusal, proceeds with forced entry, if necessary with the judge’s authorisation to call on the police and with the appointment of assistants (locksmith, removal firm).
This method is structurally quicker and less confrontational than the eviction-style procedure provided for by arts. 605-611 c.p.c., which remains residual. The successful bidder does not need to instruct a lawyer for enforcement proceedings for vacant possession: the custodian has already been appointed by the judge and acts in the interest of the procedure and of the successful bidder.
How effective the rules are depends on the operational capacity of the individual court and on the custodian’s workload. The reform has reduced the formal steps; it has not eliminated the physical timescales of the procedure.
Real eviction timescales: what to expect
Vacating timescales vary significantly according to the court district, the type of occupant, the method chosen and the specific circumstances of the case.
Voluntary departure of the debtor. If the debtor cooperates, the property is handed over within 30–60 days of the award or the transfer decree. This is the most frequent and quickest scenario. The delegate or the custodian informs the debtor of the outcome of the sale and agrees a deadline for returning the keys.
Forced eviction of the debtor. If the debtor does not cooperate, the forced execution of the release order is handled directly by the court-appointed custodian (art. 560 c.p.c. after the Cartabia reform), without the formalities of arts. 605 et seq. c.p.c. In the courts of northern Italy, where proceedings are generally quicker, eviction is completed within 3–6 months of the transfer decree. In some courts in central and southern Italy, it can take 6–12 months, and in extreme cases longer. The timescales depend on the availability of the custodian’s assistants, on the presence of socially vulnerable situations (minors, elderly people, people with disabilities) that may justify postponing the eviction, and on the court’s workload.
Vulnerable situations. If the occupant is a household with minors, dependent elderly people or vulnerable individuals, the judge may grant longer deadlines for vacating or make the eviction conditional on a referral to social services. These cases lengthen the timescales significantly and cannot be predicted from reading the appraisal report alone.
Illegal occupation after the award. In rare cases, the property is occupied illegally after the award and before you take possession. In this situation the successful bidder must bring a possessory action (art. 1168 c.c.) or apply to the enforcement judge, which adds time.
Enforceable lease. If the lease is enforceable, there is no early vacating. The successful bidder takes over as landlord and must respect the natural expiry of the lease. For residential leases governed by Law 431/1998, termination is allowed with six months’ notice and follows different rules depending on the expiry. At the first contractual expiry (typically four years in 4+4 leases) termination is allowed only for the reasons strictly listed in art. 3 of the law: the need to use the property for yourself or for relatives up to the second degree, sale to third parties when the landlord owns no other property, or serious breaches by the tenant. At the second expiry (eight years in total in 4+4 leases), on the other hand, termination is free, again with six months’ notice and without having to give reasons. For commercial leases (non-residential use), the terms and conditions are those of Law 392/1978.
Practical options: amicable agreement vs forced eviction
An amicable agreement with the occupant is almost always preferable to forced eviction, for reasons of time, cost and operational stress. Financially, too, an amicable contribution is often cheaper than the court procedure.
Amicable agreement. The successful bidder (directly or through the custodian, the delegate or a lawyer) offers the occupant a reasonable deadline for vacating, possibly with a contribution towards moving costs. The amount of the contribution varies: in practice, from €1,000 to €5,000 depending on the situation, the area and the complexity of the case. A contribution of €2,000–3,000 for a household is normal. The agreement can be formalised in a private written agreement setting the vacating date and the conditions. An amicable agreement settles the matter in 30–90 days, without court proceedings and without stress.
Forced eviction. If the occupant refuses any agreement, the court-appointed custodian proceeds directly with forced entry under art. 560 c.p.c., authorised by the judge where necessary to call on the police. No writ of demand, service by a bailiff or appointment of a lawyer for the enforcement proceedings for vacant possession is needed: the successful bidder does not bear these costs, which weighed on the pre-Cartabia system. The remaining costs borne by the procedure (and indirectly by the successful bidder for their share) comprise the fees of the assistants appointed by the custodian (locksmith €200–400, removal firm €300–1,000) and any storage of the occupant’s belongings (€50–150 a month for storage). The physical timescales of the procedure remain considerable: 3–12 months from the moment the custodian starts operations to actual vacant possession.
The choice between the two options depends on the specific situation. Financially, the decisive factor is no longer the direct cost of the eviction — which, since the Cartabia reform, is limited to the custodian’s assistants (locksmith, removal firm, storage), in the order of €600–1,700 — but the opportunity cost of the months of waiting during which you cannot use the property (lost rent, lost resale, condominium charges and IMU that accrue regardless). An amicable contribution of €2,000–5,000 that settles the matter in 30–90 days generally remains better value than 3–12 months of waiting for the forced procedure, even when the latter’s direct costs are modest.
Costs borne by the successful bidder
The costs of vacating are borne entirely by the successful bidder. The enforcement procedure does not cover them or advance them. They must be included in the overall budget before bidding.
If the property is vacated through an amicable agreement, the cost is the contribution offered to the occupant (if agreed) plus any legal fees for formalising the agreement (€200–500 for a private written agreement drawn up by a lawyer). If it is vacated through forced eviction carried out by the custodian under art. 560 c.p.c. after the Cartabia reform, the costs are limited to the fees of the assistants appointed by the custodian (locksmith €200–400, removal firm €300–1,000) and any storage of the occupant’s belongings (€50–150/month for storage). No fees for a lawyer acting for the successful bidder and no bailiff’s costs for the enforcement proceedings for vacant possession are due: these items, typical of the pre-reform system, have been removed by the current rules.
For a property occupied by the debtor where voluntary departure is expected, an additional budget of €1,000–3,000 for vacating is a reasonable estimate. For a property with problematic occupation (uncooperative debtor, large family, vulnerable situation, aggressive occupant), costs can rise to €5,000–10,000 between the amicable contribution, legal fees and waiting time.
The whole process — from searching for the lot to the bid, from the deposit to the decree — is described in the guide to buying at a court auction.
Frequently asked questions
Can I enter the property immediately after the award?
No. The award does not give you possession of the property. When you get the keys depends on the occupancy status. If the property is vacant, the custodian hands you the keys after the transfer decree. If it is occupied by the debtor, the release order is issued together with the decree and the vacating procedure starts from there. If it is occupied by third parties without enforceable title, or if the debtor does not live there, the release order was already issued when the judge ordered the sale: the property may already be vacant when you arrive or may still need some time for eviction.
What happens if the occupant is the debtor with dependent minors?
The presence of minors does not prevent eviction, but the judge may grant a longer deadline for vacating and order a referral to the municipality’s social services. In some courts, the additional deadline is 3–6 months. The successful bidder cannot speed up the procedure in this case: the judge balances the right of ownership with the protection of minors.
Does the court-appointed custodian handle the vacating?
Yes, this is the standard method under art. 560 c.p.c. as worded after the Cartabia reform (Legislative Decree 149/2022). The custodian carries out the release order directly, without following the formalities of arts. 605 et seq. c.p.c.: they contact the occupant, set the deadline for vacating and proceed with forced entry if necessary, where required with the judge’s authorisation to call on the police. The successful bidder does not need to appoint their own lawyer for the enforcement proceedings for vacant possession. Operational timescales vary from court to court because of workload, but the procedure is uniform since the reform.
How do I check whether a lease is enforceable?
Compare the registration date of the lease (which can be checked with the Revenue Agency) with the date of registration of the attachment (which can be checked in the registration note at the Conservatoria dei registri immobiliari, the land registry office). If the lease was registered before the attachment was registered, the lease is enforceable. What counts is the registration date, not the signing date.
What can I do if the enforceable lease is at a rent clearly out of line with the market?
Art. 2923, paragraph 3, c.c. allows the successful bidder to ask the judge to declare the lease unenforceable when the rent is more than one third below the market value or the rents of previous leases of the same property. The Court of Cassation has ruled to this effect several times (judgments 9877/2022 and 23508/2022). The judge decides on the basis of the evidence offered by the parties: comparisons with other leases in the area, expert valuations of the market rent, any subleases at a higher rent. If the appraisal reports a rent significantly out of line with the market, assess with a lawyer whether the action is viable before giving up on the lot because of the occupation.
Can I ask a tenant with an enforceable lease for a higher rent?
No. If the lease is enforceable, the successful bidder takes over the landlord’s position on the same terms as the original lease (art. 2923 c.c.). The rent remains the one agreed between the enforcement debtor and the tenant. The rent can be renegotiated only at the natural expiry of the lease, if the tenant agrees, or on renewal.
How long does it take to vacate a property occupied by the debtor?
If the debtor cooperates and leaves voluntarily: 30–60 days from the decree. If forced eviction is needed: 3–12 months from the decree, depending on the court, the workload of the court-appointed custodian and the specific circumstances (presence of minors, vulnerable situations, any need for the police). An amicable agreement is the quickest and cheapest route.
Can the successful bidder change the locks?
Only after the transfer decree and formally taking possession (keys handed over by the custodian or the property vacated by the occupant). Changing the locks before the decree, or before the occupant has vacated the property, constitutes the offence of taking the law into one’s own hands (arbitrary exercise of one’s rights, art. 392 c.p.) or trespass (violation of domicile, art. 614 c.p.).
Can I claim compensation for the delay in vacating?
If the delay is attributable to an occupant who does not comply with the release order, you can claim an occupation indemnity for the period between the decree and actual vacant possession. The indemnity is proportionate to the rental value of the property. The claim must be made to the enforcement judge or in separate civil proceedings. Actually collecting it depends on the occupant’s solvency.
Vacating the property is the last operational step in buying at auction. Anticipating its timescales and costs before bidding — by reading the appraisal report and consulting the custodian — is what separates an informed purchase from an improvised one.