The theme of building amnesty It has always been at the center of debates and disputes. Many citizens try to regularize buildings built without authorization, hoping for one amnesty who avoid demolitions and sanctions. However, the legislation imposes stringent limits, and the recent judgments of administrative justice confirm its rigorous application.

An exemplary case was trial at the Council of State, which rejected the appeal of a citizen against the Municipality of Casalnuovo di Napoli. The applicant had requested the building amnesty for a property which, however, had already been the subject of a demolition order and subsequently acquired to the municipal heritage.

The sentence underlines how, in similar situations, the request for amnesty cannot be accepted.

But what are the fundamental criteria for obtaining the amnesty? When can an administration refuse it? And what do citizens have to know before presenting a amnesty instance?

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The case examined: the legal battle for the building amnesty

The case originates from a long administrative affair linked to a property built illegally in the territory of the Municipality of Casalnuovo di Napoli. The building in question had been the subject of a demolition order already in the 90s, to which the owner had not complied with. Subsequently, the municipal administration had ordered the acquisition of the property to public assets, a provision which, based on current legislation, should have made the loss of the property by the private person definitive.

In 2004, the owner attempted to obtain the amnesty of the property by submitting a request for building amnesty based on the legislation provided for by law no. 326/2003. The municipal administration, however, rejected the application, claiming that the building did not meet the necessary requirements for regularization, in particular because:

  • The property had already been acquired by the Municipalityand therefore the applicant no longer held its property.
  • The completion of the works had not been demonstrated by 31 March 2003term established by the law for the condonability of illegal works.
  • The silence-assent could not be appliedas the refusal of the Municipality had been expressed with a clear and motivated measure.

After the rejection of the request for amnesty, the owner started a long legal battle, first presenting an extraordinary appeal to the President of the Republic and subsequently addressing the Campania Tar. The administrative court also confirmed the decision of the Municipality, highlighting how the acquisition of the property and the failure to complete the work in the established times were insurmountable obstacles for amnesty.

Not satisfied, the owner challenged the Tar sentence at the Council of State, claiming that the Municipality had wrong the case evaluation and that the refusal of the amnesty was illegitimate for various reasons.

Among its main arguments there were:

  • The suspension of sanctioning measures As a result of the request for amnesty.
  • The unjust exclusion of his property from the amnestyalthough similar cases had been approved in the past.
  • The incorrect interpretation of the rules on the completion of the propertybelieving that the structure was already identifiable and therefore condonable.

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The decision of the Council of State: an interpretation of the building amnesty

The Council of State, with sentence no. 1502/2025, ha rejected the appeal Confirming the full legitimacy of the refusal of building amnesty opposite by the Municipality of Casalnuovo di Napoli. The decision was based on multiple reasons, all based on current legislation and on the consolidated jurisprudence in the field of building amnesty.

One of the central elements of the sentence was the recognition of the definitive acquisition of the property to the municipal heritage. The college reiterated that, following the acquisition measure, The private individual loses each title to request the amnestyas established by art. 31 of law no. 47/1985.

Furthermore, the Council of State confirmed that the submission of an application for amnesty does not have the effect of making previous sanctioning measures ineffective, but can temporarily suspend the execution of the demolition order (Cons. State, section VI, n. 6233 of 2018; n. 1909 of 2013).

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Silent assent and the burden of the proof of completion of works

Another key point of the sentence was the rejection of the argument of the appellant according to which the silence-assent should have determined the automatic approval of the amnesty. The Council of State has clarified that the silence-assent in building matters does not apply automatically, but only if the request for amnesty meets all the requirements required by law.

In the present case, the Municipality had adopted a motivated refusal measure, thus excluding the formation of silence-assent (Cons. State, section VI, n. 691 of 2024).

In addition, the college confirmed that theburden of proof The completion of the illegal work within the end of March 31, 2003 was up to the applicant.

To demonstrate this requirement, the jurisprudence requires that the property has been completed at least in its essential structure, including supporting masonry, reinforced concrete frame and dabbing (Cons. State, section VI, n. 1826 of 2023; Cons. Giust. Amm. Sicily, n. 287 of 2024). In the case in question, the Council of State considered the documentation provided by the appellant insufficient, thus confirming the validity of the evaluation made by the Campania TAR.

Finally, the sentence also rejected the topic relating to disparity of treatment. The Council of State reiterated that, even if the Municipality had mistakenly granted the amnesty in similar situations, this would not constitute a valid reason to legitimize a new amnesty in violation of the rules. Administrative discretion must always be exercised in compliance with current laws, and an error of the administration cannot be invoked to obtain a non -existent right (Cons. State, section VI, n. 2136 of 2023; Section II, n. 7104 of 2020).

With this decision, the Council of State has reaffirmed the principles of legality and certainty of law on building amnesty, underlining that the amnesty cannot be granted indiscriminately, but only when all the conditions provided for by the law exist.