The recent sentence no. 7740 of 2024 of the Council of State offered important clarifications on the role of certificate of usability in relation to urban planning and building compliance of a property intended for commercial activity.
The case involved a request to transfer a tobacco shop, which had initially been denied due to alleged documentary deficiencies. The final decision overturned the first instance ruling, maintaining that the certificate of occupancy can be considered sufficient to demonstrate the property’s compliance with urban planning regulations.
What are the implications of this ruling for commercial transfers? And what lessons can be learned to avoid similar disputes in the future?
Let’s explore the various aspects of the issue in detail.
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Context and details of the dispute
The story begins with the request to transfer a tobacconist and lottery ticket office within the same municipality, but to a new location. The applicant had applied to move the business from a peripheral street to a more central one, in order to improve the visibility and profitability of the business. The transfer request was accompanied by the certificate of usability of the proposed property, which certified compliance with health and hygiene regulations and the technical characteristics of the building.
However, a competitor holding a license in the same location challenged the transfer authorization, claiming that the documentation presented was not sufficient to demonstrate the planning compliance of the new premises.
In particular, the critical point concerned the lack of specific documents certifying the intended commercial use of the premises, as required by the art. 11, paragraph 3, of Ministerial Decree 38/2013, which regulates the characteristics necessary for commercial activities.
In fact, the legislation provides that, to authorize the transfer of commercial licenses, the urban planning regularity of the property must be guaranteed, including the appropriate intended use.
The Regional Administrative Court (TAR) for Molise, in first instance, had partially accepted the appeal of the counterparty, believing that the certificate of usability alone was not sufficient to demonstrate the urban planning compliance of the premises. The decision was based on the fact that the certificate mainly attested to the safety and healthiness of the property, without however guaranteeing the urban planning compliance required for commercial use.
This ruling had led to the suspension of the transfer provision, leaving the activity suspended and generating legal uncertainty for all parties involved.
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The role of the certificate of suitability
The central point of the dispute concerned the probative value of the certificate of usability in certifying the conformity of the property not only from a hygienic-sanitary point of view, but also from an urban-building perspective. The ruling of the Council of State overturned the TAR’s decision, stating that the certificate of usability issued by the Municipality it also implies urban planning compliance.
In fact, to obtain this certificate, the property must comply with the approved building project and current regulations, including the intended use.
According to the Council of State, it would not be possible for a Municipality to issue a certificate of usability if the property presented irregularities from a construction point of view. The ruling underlined that in the specific case the certificate included references to the conformity of the systems, the registration of the property and the urban planning compliance, thus making it suitable to demonstrate that the premises possessed all the necessary requirements to host the commercial activity.
This interpretation has established an important precedent, clarifying that the certificate of usability can constitute sufficient proof of urban planning regularity, without the need for further specific documents, as long as it contains the information required by the legislation.
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The implications of the sentence
Sentence no. 7740/2024 of the Council of State has important implications. The decision clarifies that, in the absence of obvious building or urban planning irregularities, the certificate of occupancy can be considered sufficient to demonstrate the compliance of the property with the regulatory requirements necessary for commercial operation.
This simplifies the bureaucratic process for business owners, reducing the risk of disputes related to construction documentation.
However, it is essential that applicants pay particular attention to the completeness of the documents presented during the transfer process, especially when it comes to property intended for commercial use.
The ruling clearly indicates that, if the certificate of occupancy includes references to urban planning compliance and intended commercial use, this will be sufficient to avoid appeals. At the same time, it suggests the importance of requiring detailed certifications to avoid future legal disputes that could cause long suspensions of activities.
For local administrations, this decision may entail greater responsibility in issuing certificates of suitability, since these do not only concern hygienic-sanitary safety, but also urban planning and construction regularity.
