The recent ruling of the Council of State n. 9580/2024 addresses an important issue linked to building abuse and the role of the certificate of occupancy.
A property purchased through bankruptcy proceedings was subjected to inspections which revealed significant irregularities, such as unauthorized extensions and changes of use. This led to the issuing of a demolition order, which was later replaced by a financial penalty.
The ruling clarifies that the certificate of usability, although certifying the suitability of a building for the intended use, does not guarantee the urban planning compliance of the works carried out. But what are the consequences for owners and the practical implications of this decision? Let’s delve deeper into the case to better understand the topic.
The judicial case
The story originates with the purchase of a property, subjected to bankruptcy proceedings, by a private citizen. Subsequently, the Municipality launched a series of checks which led to the discovery of numerous building violations.
Among the irregularities found, significant transformations stand out, such as the modification of the basement, originally intended as a cellar, into a living area with relaxation area equipped with sauna and Turkish bath, and the expansion of the attic, initially not habitable, into usable spaces. Furthermore, volumetric increases and closures of external porticoes were noted, which changed the appearance and use of the building compared to the authorized projects.
The Municipality then issued ademolition ordermotivated by the total discrepancy of the works compared to the building permits issued. However, subsequent technical investigations demonstrated that the demolition would have compromised the structural stability of the building, making it necessary to resort to taxation of abuses.
This procedure, provided for by art. 33 of Presidential Decree 380/2001, allowed demolition to be replaced with a financial penalty, calculated based on the value of the illegal works.
The owner contested these measures before the Lombardy Regional Administrative Court, maintaining his good faith, as he was not the one who carried out the abuseand lamenting the absence of real damage to the public interest. However, the TAR rejected the appeals, confirming the legitimacy of the municipal decisions. On appeal, the Council of State confirmed the sentence, clarifying that the restorative nature of the building sanctions is independent of the subjective responsibility of the owner.
Good faith or ignorance of the abuses does not exclude the application of sanctioning measures, necessary to re-establish urban planning legality.
This story highlights not only the importance of complying with building regulations, but also the consequences of the lack of thorough checks before purchasing a property. The ruling underlines, in fact, that the certificate of usabilityoften considered a guarantee of regularity, cannot replace the building permit or justify non-compliant works.
Advertisement – Advertising
The legal principles of the sentence
The ruling of the Council of State n. 9580/2024 stands out for having reiterated some fundamental principles in construction matters. Among the most relevant is the distinction between certificate of usability And building compliance.
According to the judges, the issuing of the certificate of usability does not automatically imply the urban planning regularity of the property. This document, in fact, certifies that the building complies with the regulations regarding safety, hygiene and healthiness, but does not replace the building permit necessary to guarantee compliance with urban planning rules.
Another central point concerns the procedure taxation of building abusesgoverned by art. 33 of Presidential Decree 380/2001. This rule provides that, in the event of technical impossibility to demolish the illegal works, the administration may impose a financial penalty as an alternative. In the case in question, the Municipality correctly applied this provision, demonstrating that the demolition would have compromised the stability of the building.
Finally, the ruling underlines that the good faith of the owner or non-involvement in the abuses do not exempt from the application of building sanctions, which have a real nature and are aimed at restoring the violated legality. This principle is confirmed by consolidated administrative and criminal jurisprudence, which attributes to building sanctions an essentially restorative function, independent of subjective responsibility.
Advertisement – Advertising
The practical implications
The ruling of the Council of State offers important food for thought for property owners, professionals in the construction sector and public administrations. One of the first implications concerns the owner’s responsibility: anyone who purchases a property must carefully check urban planning and building compliance, even if the property was acquired through bankruptcy proceedings or other methods that may seem exempt from in-depth checks.
This is to avoid incurring measures such as demolitions or financial penalties.
For professionals in the sector, the ruling reiterates the importance of drawing up projects that scrupulously respect urban planning regulations and of following amnesty procedures where necessary. Furthermore, it clarifies that the certificate of usability it is not sufficient to guarantee the full construction regularity of a property, representing an aspect to be carefully considered in the consultancy provided to customers.
