Key handover before the deed

How Key Handover Works Before the Deed

Handing over the keys before the notarial deed is an operation that is often requested but also frequently underestimated.

It may happen that the buyer asks the owner to hand over the keys to a property before the deed is signed. The reasons can be many, and perhaps the most common example is the need to carry out renovation work in the property being purchased, requiring access to the home to begin the renovation project or the work itself.

Although it may seem like a simple request and the consent might appear to be a mere formality, handing over the keys before the deed remains a very delicate matter and an action that should not be taken lightly. It is a clear example of a gentlemen’s agreement that can hide several critical issues in practice. Both the prospective seller and the prospective buyer may be exposed to risks that could trigger a chain of shared responsibilities.

What risks do I face if I hand over the keys before the deed?

First of all, it is important to clarify one point: until the deed is signed in the presence of a notary, ownership of the property remains with the prospective seller, regardless of whether the keys have been handed over to the prospective buyer.

It is therefore essential to fully understand the reason behind the request for the keys — and therefore for the buyer’s entry into possession — and to imagine as many possible scenarios as possible. You will quickly realize that there are countless possibilities.

To better understand what is meant by “entry into possession,” we can refer to Rudolf von Jhering, a 19th-century German jurist who defined possession as a presumption of ownership.

In the example mentioned earlier, the request for the keys before the deed was made in order to begin renovation work on the property. A prospective buyer who fails to complete the purchase could leave the property renovated, thereby providing a beneficial improvement for the prospective seller. On the other hand, the buyer could also leave the property immediately after demolition work has begun, increasing the extent of the damage already caused by the failure to complete the purchase.

Signing an agreement before handing over the keys

This simple example helps us understand how important it is to sign a contract when the keys are handed over. In any case, it is advisable to avoid a do-it-yourself approach and consult a professional who can help assess the risks and provide a preventive overview of the situation.

A contract governing the handover of the keys before the deed will make it possible to formalize the buyer’s request in writing and integrate it with the preliminary agreement. The reasons for the handover and any potential consequences can be clearly defined, referring where appropriate to the rules governing lease agreements or free loan for use (comodato gratuito).

The contract can clarify the respective responsibilities and the related liability waivers. In the case of construction work, it is advisable to require appropriate insurance policies covering damages to third parties during the execution of the works.

If all precautions established in a contract are taken before handing over the keys, unpleasant surprises for both parties involved in the property transaction can be avoided.

In conclusion

Let us imagine a prospective seller who, following the payment of a deposit in a preliminary agreement, hands over the keys of a property to the prospective buyer so that construction work can begin. The buyer, having been placed in possession of the property, gives the keys to a contractor, whose owner then passes them to a worker who holds them.

During the normal course of the work, let us imagine that an unfortunate event occurs — damage or an accident. This could trigger a domino effect of responsibilities, both direct and indirect, involving everyone, including the largely unaware prospective seller.

So, can the keys to a property be handed over before the deed?

Certainly yes.

But it must be regulated by a contract.

For this reason, it is always advisable to consult a professional to better understand the process and avoid unpleasant surprises during the property transaction.