With sentence no. 38815 of 2024, the Court of Cassation ruled on a case of building abuse concerning a property located in an area subject to landscape restrictions.
The appeal, presented against the demolition order issued by the Court of Naples, was rejected, highlighting the regulatory limits and rules for building amnesty.
But what pushed the judges to confirm the demolition? What are the practical lessons for those in similar situations?
Let’s analyze the details of this ruling to better understand its implications.
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The context of the sentence
The case involved multiple people who had inherited or occupied portions of an illegal property located in a conservation area. The property had been built without authorization in an area subject to landscape constraintand the demolition had been ordered by the Court of Naples, believing that it violated the urban planning and landscape regulations in force.
The people involved had appealed, arguing that the property be divided into four autonomous units and that each owner had the right to submit his own application for building amnesty.
However, the judge emphasized that it was a single building that was not legally divided, with a total volume of 1680 cubic meterswell above the maximum limit of 750 cubic meters established by the amnesty legislation.
Furthermore, the Court highlighted that no contractual title attributing exclusive ownership of specific portions to the occupants had been demonstrated at the time the amnesty requests were submitted.
This scenario is emblematic of the difficulties in applying building amnesties, especially when trying to subdivide illegal properties to get around the volumetric limits. The Court reiterated that the mere de facto division, without a real and legal division, is not sufficient to legitimize autonomous requests for amnesty.
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Volumetric limits: what does the law say?
The case analyzed is based on principles established by fundamental regulations for the Italian urban planning sector, including Law 47/1985 and Law 724/1994, which regulate building amnesty.
In particular, Law 724/1994 establishes a maximum volume limit of 750 cubic meters for each amnesty request, providing that this can only be presented if the property in question meets specific requirements. Among these, it is essential that the real estate unit is clearly divided and that each portion has a distinct legal title, such as ownership, usufruct, or other real or personal right of enjoyment.
The Court of Cassation reiterated that the “de facto” subdivision is not sufficient to circumvent the volumetric limit.
Pardon can only be granted when the split is formally recognized by valid legal documents. Furthermore, the property in question was located in a restricted area, for which the amnesty is subject to further restrictions, requiring the approval of the competent landscape protection authorities.
This regulatory framework reflects the legislator’s intent to balance the needs of citizens with the protection of the territory, preventing building amnesties from becoming tools for regularizing large-scale abuses or compromising protected landscapes.
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The ruling of the Court of Cassation
With sentence no. 38815 of 2024, the Court of Cassation has the appeal presented was rejected against the demolition order issued by the Court of Naples.
The owners had attempted to obtain the building amnesty by submitting separate applications, each relating to a portion of the building, in the hope of circumventing the volumetric limit of 750 cubic meters established by Law 724/1994.
The Court found that such requests were inadmissible for several reasons. First, the property it was not legally subdivided at the time of submitting the amnesty applications: there were no notarial deeds, property divisions or other documents certifying the formal separation of the housing units. Consequently, the separate requests were considered a single attempt to circumvent the volumetric limit, a principle repeatedly reiterated by the case law.
Furthermore, the Court underlined the impossibility of granting amnesty for a property located in arestricted areaunless in compliance with extremely rigorous criteria. Landscape constraints, in fact, require that every building intervention be compatible with the protection of the environment and the landscape.
In this case, the property exceeded the limits imposed by current legislation and was not supported by sufficient documentation to justify the amnesty.
A further aspect addressed by the ruling concerns the exceptional nature of the building amnesty, which cannot be interpreted as a tool to regularize indiscriminate abuses. The Court recalled jurisprudential precedents that prohibit the artificial subdivision of single properties to obtain multiple amnesties, reiterating that the amnesty is admissible only when the property fully complies with the legal requirements.
