Building abuse in condominiums: how to manage it and who must answer for it


Emma Potter

With the term Building abuse all the actions aimed at realizing a construction or renovation work that takes place are identified without be accompanied by the relevant ones permissions provided for by law.

Depending on the severity of the situation, building abuse may have only an administrative connotation or criminal.

Also for this reason, it is essential to have clear ideas regarding responsibilities in this sense, especially when the works in question affect the common areas of the condominium.

When are we faced with building abuse in a condominium?

The abuses in this case concern:

  • failure to comply with the restrictions of the condominium regulations;
  • violations of the rules established by the civil code;
  • non-compliance with building or urban planning regulations;
  • realization of works that do not comply with the authorization obtained or carried out even without the approval of the Municipality.

Total tort, substantial abuse, partial (also called minor) abuse or insignificant abuse

We have a total wrongdoing (the most serious) if the construction or renovation works were carried out in the absence of Permission to build or other title required by law.

Or, even in the presence of the required authorizations, if the building is completely different from what is indicated in the documentation or even if the building appears to have increased its volume, if this was not foreseen in the documentation presented when requesting permits.

It is defined substantial abuse that which implies construction with permits, however once completed works are charged a different one intended use to the property.
They are the so-called variations. Be careful, however, those modifications which, although deviating from the initial project, do not involve substantial changes to the structure are called variants in the strict sense.

Therefore, in this case it is possible to request the issuance of a complementary or accessory permit.

Instead, the essential variations are those that create incompatibility of the work carried out with respect to the project for which the permits were obtained.
This type of abuse is obviously considered more serious and to remedy it it will be necessary to request a new building permit that is totally independent of the previous one.

Building abuse minor it is one in which there is a discrepancy between the interventions carried out and what was indicated in the initial project. It is defined as minor because the discrepancies only affect some elements of the construction in particular, they do not concern the essential aspects of the same.

The important thing is that changes have occurred only in relation to small changes linked to some technical measures, nothing substantial in short. And, above all, the must have is no changes to the volume of the building and its intended use.

The one classified as insignificant abuse occurs when the variation compared to the initial project does not affect more than 2%. This is the difference gap allowed between what is indicated on paper and the concrete final result.

Remaining within this 2% margin, therefore, the construction or renovation work is considered legal.

The necessary permits based on the extent of the intervention

The documentation that you need to have, based on the construction or renovation work that will be carried out, are: Building Permit, SCIA, CILA or CIL.

The Permission to build it is issued by the Municipality in which the property subject to the intervention is located and consists of the authorization to carry out the construction works that will lead to the building transformation of the same.
It is necessary in the presence of new constructions and significant renovations which also change the volume of the property.

The application for the release of the Building Permit must be made electronically before starting the works, of course. Generally, the procedure develops over a period of 90 days starting from the date of submission of the request. In some cases the Municipality can reserve up to 150 days before issuing the authorization.

SCIA corresponds to Certified Report of Start of Activity and is mandatory when working on the structural parts and, therefore, if a structural modification to the building is carried out. The SCIA must be sent to the SUAP (One Stop Shop for Productive Activities) of the Municipality.

The CILA, or sworn communication of the start of work, is required when extraordinary maintenance interventions are carried out which do not imply a structural modification to the building. This documentation must be presented to the Municipality before the start of the works and must necessarily be drawn up by a qualified technician who in this way certifies the construction works.

The CIL is the Commencement of Works Communication and must be presented when a work is carried out, i.e. a temporary one which has the aim of satisfying a specific temporary need.
In any case, the 90 day limit cannot be exceeded, after which the work must be removed.
The CIL can be presented by the owner of the property, the certification of a technician is not necessary as these are works that do not modify the structure of the property.

Confirmed building abuse in the condominium area: where does the responsibility fall?

First of all, let's start with the reporting of building abuse. In a condominium context, when building abuse occurs, the condominium administrator covers a very important role and is required to deal with the reporting and management of the offence.

However, they are also called into question owners of the individual residential units that make up this condominium.
Therefore, the administration will inform the condominiums of the problem, after which it will have to act as follows:

  • submit a formal complaint to the Municipal Police which is the competent authority for building violations, in the case of constructions carried out without permission;
  • also inform the Town Planning and Toponymy Office of the municipality where the condominium is located of the facts, if the abuse is linked to discrepancies or absence of permit issued by the municipality.

Attention: the Civil Code establishes that the condominium administrator is not required to notify the condominiums in advance, i.e. he can directly make the necessary reports, their 'authorization' is not required and, consequently, it is not necessary to call a meeting extraordinary with this agenda.

In fact, if the administrator does not proceed to report a building abuse (once he becomes aware of it) it can be prosecuted criminally.

Furthermore, at the condominium meeting it could be subject to revocation of the assignment, as required by art. 1129 of the Civil Code.

In any case, especially if he acts in good faith, it is good practice, with a view to maintaining good relations, for the administrator to send written communication of the incident to the condominium owners.

Article 1117 quater of the Civil Code offers an additional tool to administrators and condominium owners to defend themselves from building abuse. In fact, it predicts that even individual condominium owners can warn the executor and can request the convening of the meeting to stop the violation, also through judicial action.

But, once reported to the competent authorities, who must respond legally of building abuse? Alias, who has to pay to cure it?

Unfortunately, The individual condominium owners of the real estate units that make up the condominium are responsible for building violations.

In fact, as indicated in the Civil Code, the person responsible for building abuse is the one who has access to the property, even through possession that is not formally qualified.

The article 29 of Presidential Decree n. 380/01 indicates with the term of responsible the holder of the building permit, the client, the builder, the works manager and the subjects responsible for ensuring compliance of the works with urban planning regulations.

The basic concept, in fact, is that every person who has the power to intervene in the execution of the work can also block it if they believe they glimpse irregularities or anomalies and, if they do not do so, they risk incurring criminal liability.

In the case of building abuse concerning one of the common partsall the condominium owners who participated will be liable, as well as the clients, builders and construction manager.
However, when the offense was committed within the private property of a person single condominiumthe responsibility and consequent charges will be borne by the latter.

In this regard, it should be specified that if the work subject to building abuse has damaged or limited the other condominiums in using the common areas or in terms of damaging the decorum of the building, the other condominiums can request the removal of the work itself and the restoration of the previous state of affairs at the expense of the owner responsible for the abuse.

Private building abuse in condominium areas

Since a condominium is the reunion of several residential units, it is not uncommon for this case to occur, i.e. for building abuse to arise in the context of a private apartment.
In this regard, the guidelines are dictated article 112 of the Civil Code which reads as follows:

In the real estate unit owned by him or in the parts normally intended for common use, which have been assigned exclusive ownership or intended for individual use, the condominium owner cannot carry out works that cause damage to the common parts or cause damage to the stability, safety or architectural decoration of the building. In any case, prior notice is given to the administrator who reports it to the assembly.

Translated into simple words, with this article the Civil Code establishes that it is forbidden to carry out construction works that could damage the common areas of the condominium or compromise the stability, safety or aesthetics of the building, even if they have building permits.

What is regulated by article 112 applies both to the individual private apartment and the common areas.

For this reason, before starting a building project, the owner of apartment as well as the architectural decoration of the building.

Once this communication is received, the administrator will transfer the information to the assembly.

This is the right procedure to always follow if we are the owners of a real estate unit within a condominium.