Building abuse: when can the municipality acquire your property? A ruling from the Lazio Regional Administrative Court clarifies the consequences of building abuse, rejecting an appeal for demolition and partially accepting a dispute for deficiencies in the perimeter of the acquired area.

The Regional Administrative Court of Lazio recently expressed its opinion on a complex case of building abuse, which involved a real estate company and the Municipality of Rome. At the center of the story, two provisions contested by the company: a demolition order for the realization of works without authorization and, subsequently, a acquisition provision to the public heritage of the land and illegal constructions, following the failure to demolish them.

Sentence no. 23222/2024 rejected the appeal against the demolition order, underlining the absence of concrete evidence to support the company’s defense, but partially accepted the second appeal, highlighting the need for greater clarity in the perimeter of the areas acquired by the Municipality.

How did the story develop? What does the law establish in similar cases?

Continue reading to find out.

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The case: the first dispute

The story originated from the implementation of a series of building interventions on a property located in Rome without the issuance of a qualification valid. Among the works contested by the administration were masonry structures, volume expansions and various types of artefacts, including a wooden structure with a sloping roof, a building intended as a living room with kitchen and bathroom, and various sheet metal and masonry artefacts.

These works, according to the Municipality, constituted new illegal construction interventions, carried out in the absence of the permits required by current building regulations, in particular pursuant to art. 31 of Presidential Decree 380/2001 (Consolidated Construction Law), which regulates interventions carried out in breach of the authorizations and provides for their mandatory demolition.

The municipal administration, having ascertained the irregularity, issued an order enjoining it the demolition of the works within 90 daysspecifying that, in the event of failure to comply, the area occupied by the artefacts and a further portion of land equal to 1,600 m2 would be automatically acquired as public property.

The real estate company challenged the ordinance, arguing that the works did not fall under serious building violations. The defense claimed that some of the buildings were pre-existing and dated back to a period before 1967, when building permits were not mandatory. Furthermore, it contested the qualification of the works as new buildings, arguing that they were rather building renovation interventions, pursuant to art. 33 of the same Presidential Decree, which provides for less severe sanctions and not demolition.

During the proceedings, however, the company did not produce sufficient cadastral or evidentiary documentation to demonstrate the legitimacy of the interventions, relying mainly on statements not supported by objective elements, as highlighted by the TAR in the sentence.

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The case: the second dispute

The second dispute arose from the failure to execute the demolition order previously notified to the company. Once the 90 days granted for the voluntary removal of the illegal works had elapsed, the municipal administration ordered theautomatic acquisition to public assets both of the works carried out and of a portion of surrounding land of 1,600 m2, in application of the art. 31 of Presidential Decree 380/2001.

The acquisition was formalized with a management provision which provided for the transcription of the transfer of ownership in the real estate registers and the placing of the Municipality in possession of the buildings and related areas. The company then filed a second appeal, challenging the legitimacy of this procedure for several reasons.

In particular, the company complained:

• Lack of detailed perimeter: The acquisition provision would not have clearly identified the exact extension of the stolen area, nor indicated the methods for calculating the additional 1,600 square meters acquired beyond the area of ​​the illegal works.
• Lack of prior notification: According to the defense, a report verifying non-compliance with the demolition order had not been served, a step considered essential to allow the private party to present any counterarguments before the definitive acquisition.
• Excess power: The administration would have incurred an excess of power due to a lack of investigation and motivation, since it had not clarified the criteria followed for identifying the additional area to be acquired.

This second dispute therefore focused not so much on the existence of building abuse, but rather on the formal and procedural correctness of the sanctioning measure issued by the Municipality.

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The decision of the Lazio TAR

The Regional Administrative Court of Lazio, having examined both appeals presented by the company, issued a detailed decision, fully rejecting the first appeal and partially accepting the second.

On the first appeal:

The TAR rejected the company’s objections regarding the demolition order and the financial penalty. The main reason for the rejection was the lack of sufficient documentary evidence to demonstrate the legitimacy of the works. The company, in fact, did not produce cadastral documentation demonstrating the pre-existence of the buildings before 1967, nor did it provide concrete elements to support the hypothesis that these were building renovation interventions and not new illegal constructions.

On the second appeal:

Regarding the acquisition of the municipal assets, the TAR partially upheld the company’s objections. While confirming that the acquisition was legitimate based on the failure to comply with the demolition order, he highlighted how the administration had not adequately perimeterized the 1,600 m2 area acquired and had not clarified the calculation methods adopted.

For this reason, the court ordered the Municipality to issue a new provision that clearly specifies:

• The exact perimeter of the acquired area.
• The methods of calculating the 1,600 m2.
• The cadastral subdivision occurred.

Legal conclusions:

While confirming the acquisition due to the failed demolition, the TAR required the Municipality to correct the procedural errors and notify the company of a new deed compliant with the principles of transparency and motivation.

Finally, the company was sentenced to pay the legal costs, set at 1,500 euros, as it was the prevailing loser in the case.