Demolition of previous building abuses: general principle
The current owner it comes, therefore, directly drawn from the demolition order, also due to abuses committed by the previous owner (and also where the latter has died in the meantime (1)), if necessary cooperate in the restoration of legality violated, without prejudice to one’s right of recourse for damages suffered, in civil proceedings, to be asserted against the perpetrator of the abuse.
The demolition of an illegal building must be ordered to the current owner of the property not by way of actual liabilitybut for his own material relationship with the illegal artefact(2): the sanction imposed with the demolition order, in fact, has restorative nature and the identification of its recipient involves ascertaining who is obligated propter rem to demolish, regardless of any consideration on the imputability and subjective state (malice, negligence(3)) of the owner of the property(4). Without forgetting, however, that thebuilding abuse is considered a permanent offence(5).
The new buyer of the illegal property, or of the land on which it was built, succeeds in all the active and passive legal relationships belonging to the previous owner and relating to the sold property, including the illegal transformation, suffering the effects of both the denial amnesty, and the demolition injunction subsequently issued, even though the abuse was committed before the transfer of the property(6).
As highlighted by the jurisprudence, “the equation of the owner with the author of the abuse reveals that the restorative measure has an objective nature, being aimed at immediately reinstating the urban planning order. The owner cannot therefore free himself from the obligation to restore the property to good condition by arguing that the abuse was unrelated or that there was good faith regarding the behavior of the material executors of the works. The non-involvement of the abuse or good faith become relevant only when moving from paragraph 2 to paragraph 3 of the art. 31, Presidential Decree 380 of 2001, i.e. when it is necessary to evaluate how the demolition order can be complied with. It is in the compliance phase that the owner can distinguish his position from that of the perpetrator of the abuse, avoiding joint liability with the latter and the loss of the property”(7).
The nature of the demolition sanction
Directly it is the “real” character of the demolition sanction, suitable and sufficient to justify the demolition order towards the current owner. And in fact, the TAR Lazio, Latina, section. II, in the sentence. 27 September 2024, n. 591, recalled the peaceful jurisprudential orientation according to which “the demolition of an illegal building must be ordered to the current owner of the property not as actual liability, but rather for its material relationship with the building, being aimed at strike at an objectively anti-legal factual situationas well as to restore the violated urban planning order. Illegality, in fact, constitutes a characteristic of a real nature, which follows the property even in its subsequent transfers, with the consequence that demolition is, as a rule, a necessary and necessary act regardless of the current possession of the property and the coincidence of the owner with the perpetrator of the building abuse”(8).
In essence, the “real” character(9) of the demolition sanction serves to justify the demolition order towards the owner because the latter has the availability of the property and for this material relationship with the res he is the subject who, more than any other, is able to perform it but cannot justify a demolition order to an owner who does not have material possession of the property (because the latter is available to another person) and does not have the possibility of obtaining it in times compatible with the execution of the order.
Notes
(1) TAR Puglia, Bari, sec. III, sentence. 22 April 2020, n. 524.
(2) Council of State, sec. II, sentence. 2 July 2024, n. 5865.
(3) “The order itself has a restorative nature and does not provide for the ascertainment of the intent or fault of the person to whom the transgression is attributed”: TAR Sicily, Catania, sec. IV, sentence. 15 January 2024, n.166; TAR Campania, Naples, section. III, sentence. 13 May 2024, n. 3092.
(4) Council of State, sec. II, sentence. 2 July 2024, n. 5865: “The strict inherence of the res to the right – ontologically inherent to the right of property – does not disappear even in the case in which the owner’s rights of enjoyment or disposal are limited by situations of co-ownership or joint possession, so that the co-owner, whether or not even the possessor or co-possessor, is in any case required to take action in order to comply with the injunction to demolish. The co-ownership of the real right on the property is in fact irrelevant for the purposes of the legitimacy of the demolition order since the co-owner, precisely because of the real nature of the sanction, must ensure the removal of the abuse, without prejudice to the protection of the pre-terminated co-owner who will be able to challenge the sanctioning measure within the deadline starting from full knowledge of the injunction (see, among many, Cons. Stato, Sez. VI, 11/07/2023, n. 6760)”.
(5) TAR Sicily, Catania, sec. IV, sentence. 15 January 2024, n. 166; TAR Campania, Naples, section. III, sentence. 13 May 2024, n. 3092.
(6) Council of State, sec. VI, sentence. 30 June 2017, n. 3210.
(7) TAR Lombardy, Brescia, sec. II, sentence. 15 July 2022, n. 702 and sent. 24 November 2023, n. 859.
(8) In this sense, e.g.: Council of State, sec. VII, sentence. 9 January 2023, n. 237.
(9) TAR Lombardy, Milan, sec. II, sentence. 21 April 2023, n. 996: “The measure of the demolition or restoration order has a real character, in the sense that it can also affect the owner who is not guilty in carrying out the abuse, having the aim of removing the abuse itself, therefore regardless of any fraud or even negligence of the owner and in any case without prejudice to the ordinary civil remedies of compensation in the private relationship between the perpetrator of the abuse and the owner”.
