Building amnesty: no to separate applications to circumvent the volume limit

The extra floor for the family building

In the case addressed in sentence 6077/2026, the owners appealed against the confirmation of a demolition order for the extension of the family building, built by the mother without any building permit.

In 1991, the mother donated the flat roof to her children, and subsequently started work on the construction of a second floor of the building with two separate apartments. The children had therefore become owners of the two properties by accession, i.e. based on the principle according to which the owner of the land (main asset) automatically acquires ownership of any work or construction (accessory asset) existing above or below it. All under the same roof, therefore, but already in 1993 the first conviction for the abuse had arrived for the mother, and the first demolition order, which however was not followed by any concrete intervention.

Two separate pardon requests

With the aim of resolving the situation once and for all, in 2009 the two brothers had presented two requests for two building permits in amnesty pursuant to law 724/1994 (second building amnesty). The law had reopened the terms for the amnesty of abuses completed by 31 December 1993 with the limit of expansions within 30% of the original volume and in any case within a maximum of 750 square metres.

The two apartments measured 363.67 square meters one and 355.45 the other, therefore both individually below the threshold. Considered as a unit, however, and also adding the tower and stairwell (which as is known cannot be considered technical rooms as they are integral parts of the building), the overall volume was 813.84 square metres, therefore over the limit. For this reason, the Court of Naples, as enforcement judge, denied the revocation of the demolition order in response to the request for amnesty.

In the appeal, the two owners had argued that they were completely in compliance, having become owners not of the individual real estate units but only of the related walking surface, and in any case before the law that placed limits on remediation. A position rejected by the sender by the Supreme Court. According to the Court, in fact, the donation had the objective of allowing the (illegal) construction by the mother and the acquisition of the two apartments by the children “with their clear approval”, so this dispute “cannot constitute an argument that can be used to legitimize an abuse that cannot be remedied”. Indeed, the fact of having presented two separate applications for amnesty, in the opinion of the judges, demonstrated the attempt to evade the rule.

When separate questions are allowed

The Court’s decision starts from the now consolidated orientation according to which the individual requests presented for the separate units that make up the building must refer to a single amnesty concession.

A single exception is allowed, indicated by the Constitutional Court with sentence 302/1996 and recently taken up by the Council of State (2173/2025): the split of the applications is legitimate only in the presence of ontologically different abuses within the same real estate complex, while “the illegal building work must be identified with reference to the unity of the building constructed where it was carried out by the builder in execution of a unitary design, the division of the work itself into several being irrelevant housing units”.

In the case examined, the abuse was unique and carried out by a single person, so no exception could be invoked.

The criminal judge is required to evaluate the curability of the works

The ruling also addresses a second aspect relating to amnesty in the presence of a demolition order. The two brothers argued that the enforcement judge could disapply the amnesty only in the case of gross and obvious illegitimacy.

The Court of Cassation rejects the thesis: the obvious nature of the illegitimacy does not constitute a limit to the criminal judge’s review of the act. The enforcement judge always verifies the existence of the formal and substantial prerequisites, including compliance with the volumetric limit, without the PA being able to preclude this check by issuing the title. Therefore the judge can disapply the amnesty measure when it was issued in the absence of the legal conditions required for its existence, not when the defect concerns the mere exercise of administrative power and only causes invalidity.

Good faith cannot be invoked when the purpose of the operation is clear

The brothers had also attempted to assert the legitimate expectations that had accrued in the time spent without repressive acts. The Court of Cassation also in this case excludes the relevance of the topic: good faith must be assessed at the time of submission of the amnesty applications, not with respect to the pre-existence of the abuse. And at that moment the awareness was full, given that the donation of the pavement was functional to the expansion. The appeal of the two owners was rejected and the demolition obligation confirmed.