The hypothesis of requesting the title in amnesty
The principle also applies in the case of a request for a building permit in amnesty, as reiterated by the TAR Umbria, section. I, in the sentence. 24 September 2026, n. 376. And in fact, as highlighted in the sentence, when the intervention affects a co-owned property, the law requires the intervention of all the subjects involved in the request for amnesty.
According to an absolutely consolidated orientation, “The person entitled to request the amnesty qualification must be the one who has total availability of the asset, as ownership of just one part or quota is not sufficient. The individual co-owner, therefore, cannot be legitimized, for the obvious reason that, assuming otherwise, his autonomous behavior would end up compromising the qualified rights and interests of the subjects with whom he shares the legal position on the property subject to the measure. In the event of multiple owners of the same property, consequently, the application for the issuance of a building permit – whether or not it is a title in the amnesty of interventions already carried out – should come jointly from all the subjects boasting ownership rights over the property, with the single co-owner being able to consider himself entitled to submit the application only and exclusively in the case in which the factual situation existing on the property allows us to assume the existence of a sort of so-called pactum fiduciae existing between the various co-owners”(4) (think of the existence of a condominium resolution which certifies the unanimity of the co-owners with respect to the request and delegates one of them to present the latter).
The peculiarity of the concrete case: the role of the designer
The reported sentence presents a peculiarity: the request was presented by a co-owner and also by the designer (in this case, for the purposes of extinguishing the criminal proceedings linked to the abuses) and, correctly, the municipal technical office rejected it due to lack of legitimacy.
According to the Umbrian judges, the hypothesis of a building amnesty which is issued at the request of the designer for the exclusive purpose of extinguishing the criminal proceedings relating to building abuses, but which is then not implemented due to the opposition of the owners opposed to the amnesty, is inadmissible – and in any case has no basis in positive law or jurisprudential application. It would be a sort of amnesty permit valid for criminal law purposes but without full legal effectiveness.
Such a reconstruction, however, clashes:
- with the principle of certainty of legal relationships and enforceability of administrative measures, (ex art. 21 bis of Law no. 241/1990), whereby an administrative measure would be issued which would be effective for criminal purposes for some (the designer) but ineffective for others (the dissenting co-owners);
- with the protection of the dominion rights of the co-owners, who would be subject to changes affecting a property owned by them on the initiative of external third parties regardless of their consent.
Furthermore, even the literal interpretation of the art. 36 on the subject of conformity assessment excludes the designer from being included in the notion of being responsible for the abuse, because alongside the “responsible” the standard mentions the “current owner of the property”, in implicit admission that the person responsible is, instead, the previous owner, or one of the previous ones, as usually happens for building abuses dating back.
The thesis according to which the designer could also present a request for amnesty independently of the owners, although suggestive, is not persuasive, for a simple reason: the issuing of a building permit, albeit in amnesty, as it is suitable for determining irreversible effects on the respresupposes that the applicant has a qualified relationship with that thing, even a previous one, precisely for reasons of protection of the holders of dominion rights.
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Notes
(1) TAR Campania, Salerno, sec. II, sentence. 17 January 2025, n. 121; sent. 10 June 2021, n. 1428; Naples, section. VII, sentence. 19 October 2021, n. 6566; section III, sentence. 22 February 2023, n. 1146; Council of State, sec. II, sentence. 21 July 2023, n. 7158; section IV, sentence. 7 September 2016, n. 3823.
(2) Council of State, sec. II, sentence. 12 March 2020, n. 1766.
(3) TAR Tuscany, section. III, sentence. 10 June 2021, n. 880.
(4) Council of State, sec. VII, sentence. 10 November 2025, n. 8701, sec. VI, sentence. 12 November 2024, n. 9054; TAR Sicily, Palermo, section. IV, sentence. 9 January 2026, n. 53; TAR Lazio, Rome section. II, sentence. 8 September 2025, n. 16066; TAR Umbria, judgement. 13 December 2023, n. 708.
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