Disputed ownership of the affected area: denial of the amnesty permit is legitimate

The jurisprudence regarding checks on the person applying for the building permit

As recalled by the judges, jurisprudence is consolidated in holding that:

• given that, according to art. 11, first paragraph, of the Consolidated Building Act (Presidential Decree no. 380/2001), the building permit is issued to the owner of the property or to whoever has the right to request it, the active legitimacy to request the issuance of a building permit lies not only with the owner of the land, but also with the person holding another right to use the land, who authorizes him to dispose of it in this regard (1);
• there is the concurrent burden of the PA to seriously and rigorously ascertain such legitimacy to request the building permit(2), therefore the PA must ascertain that the applicant is the owner of the property which is the object of the construction intervention or that, in any case, he has sufficient availability to carry out the building activity(3);
• in this regard, no doubts have ever arisen regarding the legal limits, which, finding general application, contribute to forming the general statute of the construction activity and do not pose problems of knowledge for the administration, which is required to always consider them(4);
• differently, due to the contractual limitations of the right to build, jurisprudence in the past has oscillated between the solution that excludes any relevance, on the assumption that the administration is prohibited from any review, even indirect, on the validity and effectiveness of the legal relationships of private individuals(5), and the opposite one which, instead, allows the Municipality to verify compliance with the private limits, provided that they are immediately knowable, effectively and legitimately known as well as completely uncontested, so that the control translates into a simple acknowledgment(6);
• the most recent jurisprudence of the Council of State, going beyond the most dated direction, is now aligned in the sense that the administration, when it becomes aware of the existence of disputes regarding the right of the applicant for the qualification, must carry out the necessary preliminary investigations to verify the validity of the disputes, without however substituting purely civil assessments (which belong to the competence of the AGO), stopping from proceeding only if the applicant is not able to provide elements prima facie reliable(7).

A similar previous case resolved by the Council of State

The matter which is the subject of the reported sentence is similar to a further concrete case resolved by the Council of State, section. VI, in the sentence. 12 May 2020, n. 2991. On that occasion the judges of Palazzo Spada condemned the behavior of the municipal technical office which, despite being aware of a dispute over the ownership of the area affected by the building intervention, had nevertheless issued the building permit under amnesty, instead of “deny or defer the issuance of the title”.

Always the Council of State, section. VI, in the sentence. 12 April 2021, n. 2951, recalled that “the general rule, whereby the building permit is issued without prejudice to the rights of third parties, on whom the Municipality is therefore not required to carry out particular investigations, finds a limit in cases in which the Municipality itself knows that the right of the person requesting the permit is contested; in this case, it is believed that the institution must carry out the necessary investigations to verify whether these disputes are founded and deny the issuance of the title if the applicant is not able to provide serious elements to justify his right”(8).

The hypothesis of amnesty in the case of co-ownership

Finally, we would like to remind you that according to jurisprudence (9), in the case of co-ownership, the request for the release of the building permit, even in amnesty, comes from all subjects with ownership rights over the property, with the individual co-owner being considered entitled to submit the application only and exclusively in the event that the factual situation existing on the property allows us to assume the existence of a sort of fiduciary agreement between the various co-owners; the consent of the co-owners cannot, evidently, be presumed sic et simpliciter.

It is irrelevant that the Municipality does not have the burden of carrying out an accurate and in-depth examination of the relationships between the co-owners, since in the presence of condominium or shared buildings the existence of a plurality of interested owners is immediately perceivable and does not require particular investigations (10).

Notes

(1) Council of State, sec. VI, sentence. 15 July 2010, n. 4557; section IV, sentence. 2 September 2011, n. 4968.
(2) Arg. former Council of State, sec. IV, sentence. 7 September 2016, n. 3823.
(3) Council of State, sec. V, sent, 4 April 2012, n. 1990; according to TAR Lombardia, Brescia, sec. I, heard. 16 March 2020 n. 224,”pursuant to art. 11 paragraph 1 of the Consolidated Building Act (Presidential Decree no. 380/2001), the verification of the legitimacy to request the building permit concerns a fundamental preparatory requirement”.
(4) Think about the legal limits regarding distances, lights and views: cf. TAR Marche, section. II, sentence. 10 January 2026, n. 36.
(5) Council of State, sec. V, sent. 20 December 1993, n. 1341.
(6) Council of State, sec. IV, sentence. 12 March 2007, n. 1206.
(7) Council of State, sec. IV, sentence. 19 December 2016, n. 5363.
(8) Recalling the Council of State, sec. VI, sentence. 24 July 2020, n. 4745.
(9) TAR Tuscany, sec. III, sentence. 6 September 2021, n. 1161.
(10) TAR Tuscany, section. III, sentence. 10 June 2021, n. 880.