The theme of the building amnesty has always been at the center of legal and urban planning debates in Italy. Many citizens, over the years, have attempted to regularize properties built without permission through the amnesty provided for by the various laws of amnesty. However, the possibility of obtaining a permit in amnesty is not absolute and must comply with precise regulatory limits.
A recent case reached the attention of the Court of Cassation has highlighted a crucial problem: is it possible to make subsequent changes to a property to fall within the parameters provided by the amnesty? Or do the abusive works respect the limits already on the date established by the law?
The judgment examined provides a clear response, confirming that the reduction of the volume of an abusive property after the deadline set by the law cannot make a amnesty legitimate.
What are the implications of this decision for other similar cases? What changes for those who have requested a building amnesty? Let’s find out in detail.
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The story: from the abusive artifact to the judicial dispute
The story originated in the 90s, when a building artifact without concession in a town in Campania. In 1998, the Court sentenced the owner for building abuse and ordered the demolition order of the building. However, in 2004, following the issue of law no. 326/2003 on the third building amnesty, the owner presents an application for amnesty with the aim of regularizing the construction.
In 2017, after a long bureaucratic process, the Municipality issued a first permit to build in amnesty. However, subsequent technical investigations reveal that the volume of the building exceeds the maximum limit of 750 cubic meters provided for by the condoms.
Consequently, the Municipality revokes permission and reactivate theorder of demolition.
At this point, the owner starts a series of interventions by reduction of the volume of the buildingdemolishing some parts of the structure and changing the configuration of the property. In 2019 he presented a new communication of the start of works and, in 2023, he completes further cubic reduction interventions. On the basis of these changes, the Municipality issues a new permit to build in amnesty in November 2023, now considering the building in accordance with the parameters of the building amnesty.
The case is further complicated due to administrative dispute. The owner, in fact, uses the TAR against the revocation of the first building permit and the demolition order, obtaining a favorable sentence in 2020. Subsequently, the Council of State and the Tar of 2023 also confirm the possibility of obtaining the amnesty, leading the Municipality to release the new permit.
At this point, the question arrives at the Court of Cassation on appeal by the Public Prosecutor, who disputes the legitimacy of the new building permit in amnesty.
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The sentence of the Court of Cassation
The Court of Cassation, with sentence no. 1234/2025, ha accepted the appeal of the Prosecutor of the Republic, canceling the ordinance of the Court of Naples who had revoked the demolition order of the abusive property. The central point of the decision is that the building permit in amnesty issued by the Municipality of Giugliano could not be considered valid, since obtained on the basis of building interventions carried out after the deadline set by the law for the amnesty.
The Court reiterated that the volume of an abusive building must be evaluated at the time of the deadline established by the legislation (in this case, on March 31, 2003) and that any subsequent volumetric reductions cannot remedy an abuse which, at that date, was exceeding the permitted limits.
In addition, he underlined that the calculation of the volume must take place according to the criteria of the local building regulation, without the possibility of excluding structural elements to fall within the parameters of the law.
A further relevant aspect concerns the relationship between the criminal judge and the administrative judge. The Cassation clarified that, although required to respect the administrative res judicata, the execution judge has the power to verify whether the building permit in amnesty has been issued on the basis of untruthful elements or not evaluated in the administrative seat. This principle prevents incorrect administrative decisions can automatically cancel the effects of a definitive criminal sentence.
Finally, the Court ordered the postponement to the Court of Naples to have a new assessment of the legitimacy of the permit in amnesty is carried out, taking into account all the findings that emerged in the cassation judgment. This means that the question is not yet definitively closed, but it is clear that the way to obtain the revocation of the demolition order has been significantly complicated for the owner of the property.
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The legal node: the time limit of the amnesty
The main question addressed by the Court of Cassation concerns the possibility of obtaining a building amnesty through changes made after the deadline established by law.
According to current legislation, abusive works must possess the remediality requirements by the date set by the amnesty law. In the specific case, the limit was March 31, 2003, established by law no. 326 of 2003
The Cassation reiterated an already affirmed principle that previously: it is not possible to carry out demolition interventions or structural changes after the expiry of the legal term to make an abusive work healthy. These operations cannot be considered as a postum regularization, but represent an attempt to evade the regulatory provisions.
In addition, the sentence clarified that the calculation of the volume must be carried out according to the criteria established by the building regulation in force in the Municipality of reference. In the case examined, the real volume was however greater than 750 cubic meters permitted, also considering architectural elements that the owner had tried to exclude from the calculation.
