Handing over the keys before completion: risks for the seller and how to protect yourself

The legal framework: who owns the property before completion?

The starting point is clear: until the notarial deed of sale is signed, the property remains the seller’s, even if the preliminary purchase agreement has been signed and the deposit has been paid. The preliminary agreement creates obligations only, as it binds the parties to complete the final transaction but does not transfer ownership, which passes only upon completion.

It follows that the seller has the full right to refuse early access without thereby breaching any contractual obligation. Handing over the keys is not a requirement under the preliminary agreement, but an additional, voluntary concession.

When access is granted, its legal nature is clearly defined: a buyer who is allowed to enter the property early does not become its possessor but rather its holder, in the same way as someone who occupies a property while acknowledging that it belongs to someone else. The Italian Supreme Court of Cassation has classified this arrangement as a loan for use (comodato) linked to the preliminary purchase agreement.

The concrete risks for the seller

Granting early access exposes the seller to several risks that should be understood before making a decision. The first is damage to the property, caused by the buyer or by third parties entering on their behalf. The second is unauthorised alterations: works that modify the property, complicate completion or create cadastral and planning irregularities for which the seller, who still owns the property, may be held liable.

The third risk is occupation: if completion falls through for reasons attributable to the buyer, regaining possession of the property can prove complicated, particularly if the buyer has moved in or started renovation work. The fourth is civil liability: an accident occurring on the property during the access period may trigger a chain of liability that, in the absence of clear rules, could extend to the seller as the property owner.

How to protect yourself with a written agreement

If you decide to grant early access, relying on a simple verbal agreement is a mistake to avoid. Without a written document, the early occupancy arrangement may have no enforceable effect against third parties, and any dispute becomes difficult to manage. Protection comes in the form of a private written agreement supplementing the preliminary purchase agreement and setting out the terms of access in detail.

The agreement should specify several essential elements:

- the purpose of access and what the buyer is permitted to do on the property;

- the condition of the property at handover, documented in detail;

- the prohibition on making alterations without the seller’s written consent;

- the allocation of liability for damage to the property and to third parties, with responsibility assigned to the buyer;

- and, above all, what happens if completion does not take place, including the obligation to return the property upon request and a penalty for each day of delay.

As a safeguard, a deposit may be agreed upon, with the amount calibrated to the risk involved. Given the sensitive nature of the matter, the agreement should be drafted by a notary or a lawyer, who can tailor it to the specific circumstances.

Handing over the keys before completion for renovation work: the most sensitive scenario

Granting access for measurements or a technical inspection is one thing; allowing renovation work to begin before completion is quite another, and far riskier. This is the situation that exposes the seller to the greatest risk and must be assessed with particular caution.

The reason becomes clear when considering what happens if completion falls through after work has already begun. A buyer who defaults could return a half-demolished property, leaving the seller with damage that goes beyond the failed sale and would then have to be remedied at their own expense. The opposite scenario can also create complications, as it raises questions about improvements and reimbursement that are far from straightforward. Added to this is the risk of building irregularities resulting from work carried out on a property that still belongs to someone else.

For this reason, the prudent approach is to postpone structural work until after the notarial deed has been signed, limiting early access to non-invasive activities. If you still wish to accommodate the buyer, the written agreement must set out particularly strict terms regarding the nature of the permitted work and the consequences if completion does not take place.

When it may make sense to accommodate the buyer

Refusing is not always the right answer. In some cases, granting carefully regulated early access can help speed up completion and strengthen the relationship with a serious buyer, demonstrating flexibility at a key stage of the negotiation.

The decision depends on the buyer's reliability and the nature of the request. A buyer who has paid a substantial deposit, already secured a mortgage and is requesting access for non-invasive activities presents a very different risk profile from someone who wants to begin demolition work while their financing remains uncertain.

In this context, the deposit becomes a form of security that should be calibrated accordingly: the greater the risk involved in granting access, the more substantial the deposit should be to protect the seller. In any case, the decision should be made by weighing the potential benefit to the transaction against the actual risk, never as an automatic response.

Why choosing Engel & Völkers protects the seller at every stage

Requests for early access are among those aspects of a property transaction that may seem minor but can turn into serious problems if handled incorrectly.

Engel & Völkers supports sellers through these stages too: assessing on a case-by-case basis whether to grant access, evaluating the buyer’s profile and coordinating the preparation of the necessary agreements to protect the seller’s position. The value of professional guidance lies in the ability to oversee even the less visible stages of a negotiation, with a focus on protecting the client’s interests from the beginning right through to completion.