Building abuse not declared by the seller: who pays the fine and who has to demolish?

Extension and concrete staircase without premises

The story arose from an inspection by the Municipality of Formello at a villa purchased in 2019. The municipal technicians had found various discrepancies: a different internal distribution of the rooms on the ground floor, a concrete staircase connecting to the basement, an extension of the surface area of ​​approximately 24 m2 with a height of approximately 2.48 meters intended for an ancillary room.

The Administration considered that the different internal distribution had been carried out in the absence of CILA, that the staircase had been built without the SCIA and that the expansion, qualified by the Regional Regulation as an essential variant, lacked the building permit, the authorization from the Veio Park Authority and the landscape and seismic authorisations.

The Municipality had therefore initiated the demolition order of the extension and applied a fine of 5,000 euros for the construction of the staircase, a fine of 20,000 for failure to demolish it and its acquisition to public property in case of non-compliance.

The owner challenged the ordinance for both the demolition order and the fine. The TAR, however, did not uphold the appeal in any part. The position of the Council of State is different, which detailed the responsibilities in the specific case.

Financial penalty and demolition: the differences

The judges of Palazzo Spada, in fact, accepted the appeal but only in relation to the financial penalty, outlining a fundamental double track for technicians dealing with construction litigation:

• The demolition order: has a real and restorative nature. It serves to bring the property back to legality and must be addressed to whoever has material availability of the property (the current owner), even if he is not the author of the abuse.
• The financial penalty (ex art. 22 TEU): has a punitive and deterrent purpose. Accordingly, it requires personal responsibility of the transgressor. It cannot attack the owner who remained completely uninvolved in the crime.

How the pre-existence of the abuse is demonstrated

The sentence also focuses on the burden of proof regarding responsibility for the abuse. The administrative judges confirm that the proof can be provided presumptively through “serious, precise and concordant” elements, assessed according to the criterion of “more probable than not”.

In this specific case, the following were considered sufficient:

• the advertising material of the real estate agency which described the property already structured on several levels before the sale;
• the preliminary contract and the subsequent public deed with the declarations of conformity issued by the seller;
• the very function of the work: the staircase represented the only structural connection to access the basement rooms transferred with the deed.

Furthermore, the conciliation attempt initiated with the seller once the abuse was discovered was taken into consideration. Hence the exclusion of the 5,000 euro fine for the buyer.

The consequences of failure to demolish

A completely different situation applies to the demolition order for the 24 m2 extension. Since the abuse itself has not been contested, the restoration order remains valid.

The sentence recalls that failure to comply with the demolition within 90 days constitutes an administrative offense of omission propter rem. This means that, if the new owner does not demolish the illegal work despite having the material availability, the free acquisition of the asset to the municipality’s assets and the imposition of an additional fine of up to 20,000 euros are automatically activated.

These consequences are not linked to the original abuse committed by the seller, but to the omissive conduct of the current owner.

The rules to avoid problems

For technicians in the sector, a clear line of operational conduct emerges in due diligence and dispute management:

• the financial penalty for works carried out without SCIA or in non-conformity must be contested if the customer purchased the property after the completion of the same, promptly collecting deeds, historical appraisals and period advertisements to secure the presumptive proof;
• criminal or administrative extraneousness to the original abuse does not save the customer from the obligation to demolish the unrepairable building. The only way out for the non-responsible owner is to take action against the seller in the competent civil courts for the violation of the contractual agreements.

Summary framework of responsibilities

We see in the following diagram how the consequences of the sanctioning measures are divided between the perpetrator of the abuse and the subsequent innocent owner, according to the principles of sentence 6401/2026: