Building abuses: demolition after 90 days can still save the property

The correct procedural sequence of repressive proceedings in construction matters

Repressive proceedings in construction matters must follow a correct procedural sequence, which consists of:

• from the demolition order, which assigns the ninety-day deadline to carry out the restoration to pristine condition and avoid further harmful consequences;
• from the verification of non-compliance with the demolition order, through on-site verification and related report;
• from the deed declaring the acquisition to the municipal heritage, which constitutes the title for the entry into possession and for the transcription of the purchase of the property in the hands of the Municipality or the Administration responsible for protecting the bond. The deed declaring the acquisition has the function of defining the object of the transfer of ownership, as it precisely identifies the acquired property and the related land area, as well as any further area, within the limits of ten times the illegal surface area, which must be acquired, on the basis of a specifically motivated evaluation, for needs of public interest connected with the current urban planning regulations (1).

The nature of the assessment of non-compliance with the demolition order

The assessment of non-compliance with the demolition order is declarative and not constitutive, as it merely takes note of an effect that has already occurred upon expiry of the deadline indicated in the demolition order, legitimizing subsequent obligations (placing the administration in possession of the property and recording the purchase in the property registers).

As clarified by the ruling of the Plenary Assembly no. 16/2023, upon expiry of the ninety-day period provided for by the demolition ordinance the administration becomes ipso jure owner of the illegal property through the assessment of non-compliance: with the notification of the assessment «the asset is intended to be acquired as an original part of the public heritage – with effect from the expiry of the term set by the art. 31, without prejudice to any extension that may be arranged – and consequently any pre-existing mortgages, burdens and constraints are lapses together with the previous dominion right, without the possible precedence of the relative transcription or registration being taken into account (see Cons. St., Section VII, 8 March 2023, n. 2459). The verification of non-compliance certifies the transfer of ownership of the asset to public heritage and constitutes the title for entry into possession and for transcription in the property registers, which must be carried out free of charge”.

The criticism of acquisitive automatism

A jurisprudential orientation has recently been formed on the function of ascertaining non-compliance and on the methods with which the transfer of ownership is declared (2) which, while respecting the principle of law enunciated by the Plenary, highlights how the automatic acquisition process, if rigidly applied, would end up generating implications that overflow from the ratio underlying the same, to the detriment both of the needs for certainty permeating the circulation regime of real estate and of the restoration purposes pursued by the building sanctioning system.

According to this orientation, the automatism of acquisition requires temperaments, especially when, after the fruitless period of ninety days former art. 31, paragraph 3, of the Consolidated Building Act, on the one hand, spontaneous compliance by the sanctioned party has been verified, so as to bring, albeit late, the state of the places to the condition of building legitimacy primarily safeguarded by the law, and on the other hand, the non-compliance with the demolition injunction and the loss of property has not yet been formally ascertained, through a specific reconnaissance deed, nor transcribed the acquisition effect for the purposes of the enforceability of the latter against any third parties entitled to the property now purified by the res abusive.

On this point, the aforementioned sentence no. 806/2024 underlines the following: «generally speaking… the owner no longer has any right to carry out the demolition after the expiry of the 90 day deadline, it is up to the discretion of the administration to evaluate whether to further involve him in the same… The possible variables in this – shared – general reconstruction scheme result from the difficulties of the Municipalities in following up on the restorative sanctions, as demonstrated by the always reported low incidence of cases of abuses actually demolished compared to those actually ascertained. In practice, that is, it often happens that restorative measures remain a dead letter due to inability, simple inertia, or even a conscious choice by the proceeding administration. The mechanistic application of the principles of law stated above would therefore end up determining an incredible number of situations in which, regardless of any analysis of the concrete case, the rule of law does not correspond to the state of fact, to the detriment of the most basic needs for certainty of legal situations. It is true that the wording of the rule does not seem to leave room for interruptive moments in the procedural sequence that follows the adoption of the injunction to demolish. The Board, however, believes that the acquisition effect, albeit immediate, should be considered subject to a sort of unavoidable condition precedent, to be recognized in the formal assessment of non-compliance, notified “to the interested party” (art. 31, paragraph 4). Furthermore, the application of the ablation sanction, due to its maximum afflictiveness, necessarily presupposes the opening of an ascertainment/information parenthesis which on the one hand allows the administration to verify the material element of the offence, on the other hand it puts its author in a position to defend himself, since he could be the naked owner, extraneous and even unaware of the first phase of the procedure. It therefore responds to the needs of guaranteeing defence, but also to the logic of saving, given that the spontaneous demolition which took place, even if late, fully and at zero cost satisfies the needs of good governance of the territory of the supervisory administration.».

Late compliance that avoids takeover: The conditions for operation

Therefore, as highlighted by the TAR Lombardia, Brescia, section. II, in the sentence. 9 June 2026, n. 813, the acquisition of the property remains subject to an implicit suspensive condition, which leaves the owner or perpetrator of the abuse with a further time margin to execute the demolition order. If the private individual complies even late, but in any case before the Municipality has definitively adopted the acquisition measure, the effect of the acquisition is reversible, as the purpose for which the acquisition was envisaged by the legislator, i.e. to encourage the demolition of illegal works, has in any case been achieved(3).

In this way, the private individual responsible for the offense spontaneously repairs, with his own behavior, the vulnus caused to the landscape, the environment and the orderly structure of the territory. Late spontaneous execution exempts the Municipality from having to advance the costs of demolishing the illegal works and from recovery activities towards the person responsible for the abuse.

The valorisation of this behavior responds to a logic of self-responsibility, useful for managing the conflict between citizens and public administration in a collaborative way, giving relevance to the conduct post factum suitable to repair the offense. The sanctioning paradigm is effectively replaced by the reparative one, with greater benefit for the public interest.

Notes

(1) Council of State, sec. VI, sentence. 1 September 2021, n. 6190.
(2) See, ex multisCouncil of State, sec. II, sentence. n. 806/2024.
(3) Council of State, sec. III, sentence. 24 September 2025, n. 7516; section II, sentence. 24 January 2025, n. 558.