Building abuse: when a transformed attic leads to demolition

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Emma Potter

Illegal construction in Italy is a very sensitive issue, with stringent regulations governing every intervention in the area. Among the most common cases of construction irregularities we find the change of intended use of properties, such as the transformation of an attic from non-habitable to habitable without the necessary building permit.

This type of intervention, apparently trivial, can actually result in heavy sanctions, such as demolition. This is precisely what happened in a recent ruling by the Council of State which concerned the illegal transformation of an attic.

But what were the key elements that led to the confirmation of the demolition? What are the rules involved and the possible sanctions for those who do not comply with them?

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The case: the transformation of an attic without permission

The story that led to the ruling of the Council of State n° 7168 began in 2014, when the Municipality of Nola issued a demolition order concerning a property consisting of an apartment and an attic. The ordinance ordered the removal of the work carried out on the attic, transformed from a non-habitable room to a habitable space, without the building permit required by law having been obtained.

This modification had resulted in a change of intended use, a crucial element in the context of urban planning regulations.

According to the municipal administration, the intervention constituted a building abuse as the change of intended use, from attic to habitable space, affected the urban planning load of the area, increasing the useful surface area of ​​the property.

The owner of the property challenged the order, claiming that the property had already been purchased in its current state and that a regularization procedure was underway to regularize the situation.

The appeal was presented to the Regional Administrative Court (TAR) of Campania, but was rejected. The TAR confirmed the validity of the municipal ordinance and considered that the appellant’s arguments were unfounded. Hence the appeal to the Council of State, with the owner of the property who tried to demonstrate the erroneousness of the first degree judgement, arguing that there was no abuse, but only a partial discrepancy with respect to the original building permit.

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The sentence: essential variation and building abuse

The Council of State, in judging the appeal, established that the change of use of the attic fell within the category of “essential variations“, pursuant to article 32 of Presidential Decree 380/2001. The concept of essential variation is central in Italian building regulations and concerns all those modifications that significantly alter the use, volume, or original function of a property.

According to the law, any essential variation requires the issuance of a new building permit.

In this specific case, the Council of State considered that the attic, originally uninhabitable, had been transformed into a habitable space, with an increase in volume and useful surface area. This type of intervention cannot be considered a simple partial discrepancy, but a real building abuse, since it significantly alters the urban impact of the building and, consequently, of the area in which it is located.

The change of intended use from non-habitable to habitable was therefore considered one variation requiring specific authorization and, in the absence of a qualifying qualification, constitutes a violation of building regulations.

The sentence also reiterated that, in the presence of building abuse of this type, the demolition order is legitimate and dutiful, representing the only form of restoration of urban planning legality.

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Defenses rejected: good faith and amnesties

The owner’s defense was based on two main points: the presumed good faith, as the property would have been purchased in its current state, and the existence of a request for amnesty which should have suspended the execution of the demolition order . However, the Council of State rejected both arguments.

Regarding good faith, the ruling reiterated a consolidated principle: building abuse is considered a permanent offenceand the demolition order has a restorative nature. This means that the demolition order does not require an assessment of the owner’s personal responsibility, but is aimed at re-establishing the violated legality, regardless of whether the current owner is responsible for the abuse or not. The argument relating to the amnesty was also rejected.

Although the defense had supported the existence of another application for amnesty, the Municipality demonstrated that this request concerned a different property, not the one covered by the measure.

In conclusion, the sentence confirmed that the change of use of the attic, carried out without permission, represented a building abuse punishable by demolition, despite the defense attempts.

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The consequences of the sentence: demolition as a binding act

One of the most relevant issues that emerged from the ruling is nature bound of the demolition order in case of building abuse. The Council of State has in fact confirmed that the demolition order does not require a particular motivation linked to the public interest, beyond the restoration of the violated legality.

Demolition is an act required in the presence of an established abuse and does not require further evaluations or comparisons with the private interest of the owner of the property.

This principle was also sanctioned by the Plenary Meeting of the Council of State in 2017, which clarified that the demolition order can be issued even years after the abuse was committed and does not require the demonstration of other reasons of public interest. in addition to the need to eliminate the illegitimate work.

In the specific case, the transformation of the attic was judged to be a building abuse which significantly altered the urban layout and, therefore, demolition was considered the only possible sanction. The defense attempted to request a financial penalty as an alternative to demolition, but the Council of State excluded this possibility, underlining that demolition can only be avoided if it is technically impossible without compromising the legitimate parts of the building, a condition which in this case it has not been proven.

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The legislation: when the recovery of attics is permitted

During the trial, the defense referred to the regional legislation of Campania which allows the recovery of attics, with the aim of arguing that the intervention was not abusive. However, the Council of State has clarified that this legislation can only be applied in the presence of a valid qualification.

In the case in question, the transformation of the attic into a habitable surface took place without the building permit, making the regional legislation inapplicable.

The recovery of attics is a particularly relevant topic in modern urban planning, especially in regions that encourage the reuse of non-habitable spaces, but these transformations must still comply with the regulations in force and obtain all the necessary authorizations. In the absence of permits, even an apparently minor intervention, such as the transformation of an attic, can be considered a building violation.