Building abuse: even maintenance becomes a new abuse

The demolition order not respected

The case examined by the judges concerns the appeal against a preventive seizure ordered on two buildings, on one of which there was a structure already subject to condemnation with a demolition order not respected, and on which further building works had subsequently been carried out. The owners had challenged the decision, contesting the thesis that mere maintenance activities can constitute forms of building abuse, and the absence of further elements capable of supporting the opening of a new criminal proceeding relating to other profiles than those already dating back to the past. Considerations deemed unacceptable by the Supreme Court.

Criminal sanction and immanence of abuse

The building crime, from a criminal point of view, pursuant to art. 44 of the TEU, begins with the start of the illegal works and ends with their completion, with the suspension imposed by the authority or with the first instance sentence. The sanctions are a fine of up to 10,329 euros for non-compliance with the rules, prescriptions and enforcement methods as well as building regulations, urban planning instruments and the building permit, and imprisonment of up to two years, and a fine of 5,164 to 51,645 euros in cases of execution of the works in total non-conformity or absence of the permit or continuation of the same despite the suspension order.

The sentence specifies, however, that the abusive nature of the work, which never ceases, must be distinguished from the cessation of the crime as such: from an administrative point of view, in fact, the illegal nature remains on the property in a persistent and uninterrupted manner, regardless of whether the criminal crime has been extinguished by statute of limitations or any other cause.

Maintenance involves another abuse

On the basis of this principle – underlines the sentence – any subsequent building intervention carried out on an illegal work, even if materially minor, even if abstractly not requiring any qualification, even if formally classifiable as ordinary maintenance (from painting the walls to the installation of technical elements) integrates the continuation of the illegal work.

Consequently, there is a new crime, with renewed statutes of limitations. The only condition that interrupts this chain is the amnesty or amnesty of the original work: until the abuse has been legally removed, however, any subsequent intervention, of any nature and at any chronological moment, constitutes its continuation.

Unitary evaluation and its consequences

From the principle of immanence derives that of the unitary evaluation of the illegal work: the new intervention on an illegal work, being also illegal, requires considering the entire artefact as an indistinct unit, without it being possible to distinguish between regular parts and illicit parts, or between previous and subsequent parts. The ruling expresses this principle on four specific fronts.

1. In terms of amnesty: the continuation of work on an illegal building outside the conditions and time limits established by law – submission of the amnesty application and payment of the second installment of the settlement – entails the applicability of criminal sanctions. The pending amnesty application does not legitimize further interventions beyond the functional completion of the work, and until the amnesty is successful the illegality of the work remains, with the consequence that the requests relating to individual units must refer to a single amnesty concession.
2. In terms of revision of the sentence: partial revision of the conviction referring only to some portions of the illegal property is not permitted, as the crime committed is unique. In essence, the subsequent implementation of further works entails the need for an amnesty for the property in its entirety.
3. In terms of the amnesty permit pursuant to art. 36 Presidential Decree 380/2001: the issuance of a building permit under amnesty conditional on the execution of interventions aimed at bringing the building into urban planning compliance is illegitimate, as the amnesty presupposes the complete compliance of the works already carried out with current urban planning regulations. Placing the condition structurally contrasts with the logic of the institute.
4. Regarding the demolition order: even if the previous order had been revoked due to prescription, the demolition order must still be executed. The statute of limitations of the criminal offense essentially does not determine a favorable condition for the accused since the demolition order is considered a restorative administrative sanction and not a penalty, and is therefore not subject to criminal statute of limitations. The sentence also reiterates that in terms of construction crimes, the evaluation of the work for the purposes of identifying the date for the commencement of the statute of limitations must concern the work as a whole, without being allowed to consider its individual interventions separately.