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The “Accertamento Tecnico Preventivo (ATP)”, a legal tool under Italian law, is an important instrument for property owners who experience damage, such as water infiltrations, and suspect the liability of an adjoining property or the condominium association (similar to expert determination or pre-trial discovery in Common Law).
A property owner in an urban area is experiencing severe damage due to water infiltrations. The infiltrations are compromising the interior walls of their apartment, and the owner suspects that the liability may lie with the adjoining property or the condominium association.
Before initiating legal proceedings for compensation, it is crucial to obtain a technical report that documents the cause and extent of the damage. The most effective tool available for this purpose is the “Accertamento Tecnico Preventivo (ATP)”, governed by the Italian Code of Civil Procedure (similar to expert determination in common law or pre-trial discovery in Common Law).
The ATP allows obtaining a detailed report from a court-appointed expert. This report includes an in-depth investigation into the causes of the infiltrations, an accurate description, and the quantification of the loss suffered. In the event of subsequent legal proceedings, the expert opinion (“Consulenza Tecnica d’Ufficio, CTU”) issued as part of the ATP carries a presumption of legal validity iuris tantum, meaning it can only be refuted with contrary evidence.
The ATP can be requested in various situations, including emergency cases, such as loss that threaten a building’s stability, and less urgent situations, such as water infiltrations. In extreme urgency, the judge can grant an ATP within weeks or even days. The request is submitted through a petition to the competent court, detailing the damages suffered and the urgency of an immediate expert assessment. It is essential to provide photographic and documentary evidence to support the request. The judge will then appoint a court-appointed expert (“consulente tecnico d’ufficio, CTU”) to carry out the assessment.
The parties involved also have the opportunity to appoint their own party-appointed expert (“consulente tecnico di parte, CTP”). The CTP assists the party that appointed them, offering a technical viewpoint during the assessment and supporting the CTU in the expert operations.
Unlike the court-appointed expert (CTU), who is appointed by the judge and acts impartially to provide a neutral technical assessment, the party-appointed expert (CTP) exclusively represents the interests of the appointing party. However, both consultants collaborate during the assessment, though with distinct roles: the CTU ensures an objective and impartial analysis, while the CTP may suggest further verifications or contest the CTU’s conclusions in favor of the assisted party.
When a property suffers severe damage due to water infiltrations, it is essential to act quickly to preserve evidence before restoration work is carried out and to avoid losing the opportunity to claim and obtain adequate compensation. In this context, the Accertamento Tecnico Preventivo (ATP) serves as an essential italian legal tool.
Below are the procedural steps:
The owners of the damaged apartments submit a petition to the competent Court requesting an Accertamento Tecnico Preventivo (ATP). The petition specifies the nature of the infiltrations, the loss suffered, and the urgent need for a technical report to evaluate the situation. This step is crucial as it formalizes the urgency and initiates the evidence preservation process.
The Court examines the petition and, considering the urgency of the situation, designates a court-appointed expert (CTU) to conduct the ATP. The CTU is tasked with conducting a thorough investigation to determine the causes of the infiltrations, describe their extent, and quantify the damages. The CTU’s designation ensures that the analysis is conducted by an impartial expert.
The CTU visits the condominium building, inspects the affected areas, collects photographic evidence, and documents visible damages and potential structural consequences. Based on their observations, they draft a detailed technical report that includes conclusions on the causes of the infiltrations and an estimate of material and structural damage. This phase is decisive for building a solid foundation for potential legal actions.
Once the assessment is completed, the CTU submits their report to the Court and the involved parties. The CTU report, based on technical and documentary evidence, provides a strong basis for future legal actions or amicable negotiations for damage compensation. This document is crucial as it provides an impartial and detailed assessment of the situation.
Property owners can use the CTU’s report as evidence in their claims for damage compensation against those liable for the infiltrations, such as a condominium association or a neighbor accountable for the damage. The technical report, thanks to its precision and impartiality, is a powerful tool for supporting compensation claims and obtaining justice for the damage suffered.
The costs of the “Accertamento Tecnico Preventivo”, including those of the court-appointed expert (CTU), are initially borne by the plaintiff. However, since the process concludes with a report that attributes liability and quantifies damage, this documentation is often sufficient to reach an amicable settlement, avoiding further legal proceedings.
In case of subsequent litigation, the ATP expenses may be allocated or reimbursed at the judge’s discretion, considering the expert findings and other evidence. The Italian Supreme Court (Cass. civ., Sez. VI – 2, Ord., 19/11/2021, n. 35510) has ruled that CTU expenses are part of overall procedural costs and should be regulated according to the final outcome of the case, following the principle that the losing party generally bears the CTU costs if the plaintiff’s claim is upheld in the final judgment.
Among the key benefits of the ATP is the ability to quickly obtain a technical report. This is crucial for carrying out repairs without losing essential evidence of the damage, especially in cases of severe damage requiring immediate intervention. The relevant legislation is contained in Articles 696 and 696-bis of the Italian Code of Civil Procedure. One specific advantage of combining the ATP with the preventive technical assessment for conciliation purposes, as provided under Article 696-bis, is that by structuring the claim correctly and also requesting a preliminary CTU, the risk of rejection of the ATP petition is practically eliminated. The average legal fees for an ATP, excluding the CTU cost, are based on ministerial fee guidelines for civil proceedings.
The ATP is not limited to water infiltration issues but can be applied to a wide range of situations, such as:
In summary, the “Accertamento Tecnico Preventivo” (ATP) is a necessary investment to safeguard the rights of the damaged property owner, facilitate the effective and timely resolution of disputes, and prevent the need for lengthy and costly judicial proceedings. Its flexibility and robustness, as governed by Articles 696 and 696-bis of the Italian Code of Civil Procedure, make it a versatile and valuable tool for protecting rights in multiple contexts.
