A forgiven property is not second class: green light for renovation

New interventions and limits of the past

The issue addressed in the ruling concerns a property, subject to a building permit in 2006 in amnesty, for which the owner had submitted a request for an assessment of conformity (articles 36 and 37 of the TEU) and landscape compatibility (article 167 of Legislative Decree 42/2004), for a series of interventions already carried out.

The works included the closure of the front of a sheet metal structure, the creation of an air chamber, the demolition of cold rooms and the creation of new changing rooms and services. All internal works, without increase in volume. The Municipality had rejected the application, qualifying the interventions as “new work” which could not be remedied through SCIA in amnesty. The TAR confirmed the denial, adding that a property already forgiven could only be subject to maintenance interventions, not new works. The Council of State overturned these conclusions in light of a careful reading of the legal provisions.

Legal certainty and no restrictive interpretations

The central point of the sentence concerns the scope of the qualification issued in the amnesty. According to the traditional orientation, the amnesty remedied the original abuse but did not confer full legitimacy: the property remained in a sort of gray area, with the possibility of intervention limited to ordinary and extraordinary maintenance.

However, the judges recall, the general principle of legal certainty of Italian and Community law does not allow “grey” areas. This is a principle recently confirmed by the Constitutional Court as an asset with constitutional protection. Therefore in light of the reading of paragraph 1-bis of the art. 9-bis of the TEU, according to which the legitimate status of the property can also be seen from the title issued in the amnesty, this title must necessarily confer full legal legitimacy on the property from a construction point of view.

The condoned property, therefore, can be considered fully equivalent, for the purposes of subsequent interventions, to a legitimately consented property.

Internal works and landscape authorization

On the basis of these considerations, the CdS gave the green light to the amnesty request, fully confirming the correctness of the owner’s request with respect to the position taken by the Municipality. In fact, having verified the urban planning regulations of the land area, it was found that the eligible interventions are those envisaged by the current urban planning instruments, without further limitations deriving from the amnesty origin.

In the case in question, the defined area allowed building renovation interventions on existing buildings, and the works carried out fully fell within the definition set out in the art. 3, paragraph 1, letter. d), Presidential Decree 380/2001, without increasing the urban planning burden. Consequently, in the absence of volumetric increases, the Municipality – which had rejected the application also for alleged violation of the art. 167 of the Cultural Heritage Code – should have proceeded directly to the landscape assessment, concluding that authorization was not necessary. The internal works that do not alter the external appearance of the building fall, in fact, among the interventions free from landscape authorization pursuant to art. 2 and Annex A of Presidential Decree 31/2017.

The Municipality was therefore ordered to re-examine the application in the sense indicated in the justification. The costs of the double level were compensated, given that the Council of State recognized the novelty of the issues addressed.

Operational implications

Operationally, the ruling redefines the framework for those who operate on properties with title under amnesty. The technician in charge of designing or supervising works on a forgiven property must verify the urban planning regulations of the area as he would for any other property, without starting from the assumption that the amnesty limits the possibilities of intervention.

The correct classification of the work – maintenance, renovation, new construction – follows the ordinary categories of the TEU, and the amnesty title does not introduce a separate category.

Note: art. 9-bis of the TEU

(1) Art. 9-bis Administrative documentation and legitimate state of the properties
1. For the purposes of presenting, issuing or preparing the qualifications provided for in this consolidated act, the administrations are required to acquire ex officio the documents, information and data, including cadastral data, which are in the possession of the public administrations and cannot request certifications, however named, or expert opinions on the truthfulness and authenticity of such documents, information and data.
1-bis. The legitimate status of the property or real estate unit is that established by the enabling title which provided for its construction or which legitimized the same or by that, issued or approved, which regulated the last building intervention which affected the entire property or the entire real estate unit, provided that the competent administration, when issuing the same, has verified the legitimacy of the previous titles, integrated with any subsequent titles which enabled partial interventions. Included among the qualifications referred to in the first period are the qualifications issued or formed in application of the provisions of articles 34-ter, 36, 36-bis and 38, following payment of the relevant sanctions or oblations. The payment of the sanctions provided for in articles 33, 34, 37, paragraphs 1, 3, 5 and 6, and 38, and the declaration referred to in article 34-bis also contribute to determining the legitimate status of the property or real estate unit. For properties built in an era in which it was not compulsory to acquire the building permit, the legitimate status is that which can be deduced from the initial cadastral information, or from other probative documents, such as photographic shots, cartographic extracts, archive documents, or other public or private deed, whose origin is demonstrated, and from the qualifying title which governed the last building intervention which affected the entire property or real estate unit, integrated with any subsequent titles which enabled partial interventions. The provisions of the fourth period also apply in cases where there is a principle of proof of the qualification for which, however, a copy or details are not available.
1-ter. For the purposes of demonstrating the legitimate status of the individual real estate units, the discrepancies in the common parts of the building, referred to in article 1117 of the civil code, are not relevant. For the purposes of demonstrating the legitimate state of the building, the discrepancies in the individual real estate units of the same are not relevant.