Late demolition by the owner
The Council of State, section. II, in the sentence. 13 April 2026, n. 2930, highlighted, among others, two important consequences that non-compliance entails for the owner.
The first concerns the possibility that the owner may proceed with the demolition late; well, according to the judges of Palazzo Spada, following the purchase of the property by the Administration:
- he can no longer demolish the illegal building;
- must reimburse the Municipality for the expenses incurred to carry out the official demolition;
- it remains, however, possible that the Municipality will allow the private sector to proceed with the demolition even late; this option, evidently, even if the ruling in question does not dwell on it, would require a written agreement between the local authority and the private “former owner”, following a specific request from the private individual himself.
It is, therefore, a sort of objective novation(6): the demolition obligation is replaced by the obligation to reimburse the Municipality for the costs incurred for the demolition.
The submission of the request for assessment of conformity
The second aspect of interest examined by the Council of State in the reported sentence concerns the possibility for the owner to present the request for the assessment of conformity; well, this option can be exercised:
- before the expiry of the deadline indicated for demolishing or reducing to pristine condition;
- in the event that this is not possible, before the imposition of the sanctions alternatively provided for by the articles. 33 and 34 of the Consolidated Construction Law.
The situation of the owner who allows the deadline for demolition to pass in vain is that of the person no longer entitled to present the request for assessment of conformity, having lost any right of legitimacy with respect to the property: this is because the Administration, upon expiry of the deadline indicated to interested parties for demolition, is ipso jure owner of the illegal property.
The transfer effect of the property in favor of the Municipality does not occur following the provision of verification of non-compliance with the injunction to demolish but at the moment in which the deadline set for demolition expires: this act only has a declarative function of the (already) acquisition of the property by the Administration and, precisely for this reason, the owner of the acquired property (or, as it can be better defined, the “previous” owner of the property) is no longer entitled to propose any request for verification of conformity, lacking the title.
Consequently, in the event of a request for a conformity assessment being submitted after the expiry of the 90-day deadline required to comply with the order, the Municipality must declare it inadmissible.
Notes
(1) Council of State, Plenary Meeting, sentence. 11 October 2023, n. 16.
(2) We remind you that, according to the TAR Lazio, Rome, sec. II excerpt, sentence. 1 March 2024, n. 4155,”the assignment of a term of less than 90 days for compliance with the demolition order does not determine its illegitimacy, resulting in a merely formal violation not harmful to the interested party, who in any case retains a term no less than the legal one to comply with the injunction (see ex multis Consiglio di Stato, Sec. VI, 8 July 2011 n. 4102; Cons. St., sec. V, 24 February 2003, n. 986). In other words, the assignment of a shorter term than the legal one produces no other effect than that of temporarily precluding, or until the expiration of the ninety days, the free acquisition of the illegal building from the municipality’s assets (see Cons. St., section VI, 26 July 2022, n. 6594)”.
(3) “3. If the person responsible for the abuse does not demolish and restore the state of the premises within ninety days of the injunction, the property and the land area, as well as that necessary, according to current urban planning regulations, for the construction of works similar to the abusive ones are acquired by right free of charge to the assets of the municipality. The acquired area cannot, however, exceed ten times the total illegally constructed useful surface area. The deadline referred to in the first period can be extended with a reasoned act of the municipality up to a maximum of two hundred and forty days in cases of serious and proven health needs of the subjects residing in the property at the time of adoption of the injunction or of absolute need or serious situations of socio-economic hardship, which make compliance with this deadline unavoidable.”
(4) Art. 36 – Verification of conformity in the event of absence of title or total discrepancy
1. In the case of interventions carried out in the absence of a building permit, or in non-conformity with it, or in the absence of a certified report of commencement of activity in the cases referred to in Article 23, paragraph 01, or in total non-compliance with it and in any case until the expiry of the terms referred to in Articles 31, paragraph 3, 33, paragraph 1, and in any case until the imposition of administrative sanctions, the person responsible for the abuse, or the current owner of the property, they can obtain the amnesty permit if the intervention complies with the urban planning and building regulations in force both at the time of its construction and at the time of submitting the application.
(paragraph as amended by art. 1, paragraph 1, letter g), number 1), of legislative decree no. 69 of 2024 converted by law no. 105 of 2024)
2. The issuance of the amnesty permit is subject to the payment, by way of oblation, of the construction contribution in double amount, or, in the case of free of charge by law, in an amount equal to that provided for in article 16.
(paragraph as amended by art. 1, paragraph 1, letter g), number 2), of legislative decree no. 69 of 2024 converted by law no. 105 of 2024)
3. The manager or person in charge of the competent municipal office decides on the request for amnesty permit, with adequate justification, within sixty days after which the request is considered rejected.
(5) TAR Campania, Salerno, sec. II, sentence. 14 January 2026, n. 82.
(6) Art. 1230 cc
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