With sentence no. 6356/2024, the Council of State has recently clarified how essential it is to respect the rules on changes of intended use of real estate. At the center of the story is a small room, originally registered as a cellar, transformed into a habitable space without the necessary authorizations. This modification led the Municipality of Rome to issue a demolition order, subsequently confirmed on appeal by the Council of State.
But what are the legal bases of this decision? And what risks do you run if you transform a cellar into a home without permission?
This ruling offers practical guidance for property owners: we will see the details of the decision, the legal obligations and the consequences that can arise from unauthorized building interventions.
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The story: from cellar to home without authorization
The building project that gave rise to the controversy concerned a room of approximately 18 square metres, originally classified as a cellar. During an inspection carried out by the municipal police, some elements were detected, including a bathroom and a kitchenette, which suggested the use of the room for residential purposes.
This change had occurred without any building permittherefore leading the Municipality to issue an order for the removal of the works.
The characteristics of the room – a bathroom and a small kitchen, although without a gas connection – were considered suitable for configuring a residential space. According to the authorities, these interventions constitute a “change of intended use”, which requires a building permit as it determines an increase in the so-called “urban planning load”.
This increase in fact leads to greater pressure on urban services, which includes aspects such as roads, public services and parking areas.
The transformation of a cellar into a home, even without invasive works, affects these factors and must be authorized to ensure that the area maintains a balance between buildings and infrastructure. In this context, the Municipality deemed the demolition intervention justified to restore the original intended use of the premises and prevent construction irregularities.
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The legal reasoning behind the sentence
The Council of State based its decision on a series of legal principles that protect the correct use of the territory, governed by both regional and national regulations.
The main reference is to article 16 of the Lazio regional law 15/2008, which rigorously regulates changes in the intended use of properties.
This article establishes that any intervention that involves a change in the original use of a room, such as the transition from a cellar to a residence, is subject to specific authorizations. In particular, the norm requires a building permit in cases where the change involves an increase in the so-called “urban planning load”, a concept that refers to the pressure exerted on local services and infrastructures.
In this case, the Council of State judged that the inclusion of functional elements such as the bathroom and the kitchenette – although mobile and not fixed – is sufficient to classify the room as habitable. The bathroom and kitchen, in fact, represent essential structures for a residential space, capable of transforming the use of the environment from a warehouse to a residential unit.
The presence of these elements, even without a gas connectionwas considered indicative of the intention to make the room habitable and therefore intended for a different use than the original one.
The Council of State also underlined how, at a jurisprudential level, the unauthorized change of intended use falls within an “urban transformation intervention” and, therefore, must be subject to permission. This type of intervention is in fact regulated by Presidential Decree 380/2001, which imposes precise obligations on those who carry out changes to the intended use which involve an increase in housing units.
In line with these regulations, the Council of State confirmed that the Municipality’s decision to issue a demolition order was fully justified. This ordinance not only aims to restore the original use of the premises, but also has a deterrent function, aimed at preventing unauthorized building practices from spreading, especially in complex urban areas with high population density such as that of Rome.
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The appellant’s arguments
During the trial, the appellant tried to demonstrate that the changes made to the premises were not sufficient to constitute a change of use. In particular, it was argued that the kitchenette, being a removable piece of furniture and not connected to a gas network, was not capable of transforming a cellar into a living space.
According to his defence, the presence of these mobile elements should not have automatically led to the classification of the premises as residential, given that its habitability in a stable and continuous manner was not guaranteed.
The Council of State, however, did not accept these arguments. The Court reiterated that even the simple installation of a bathroom and a kitchenette represents a significant indication of the residential use of the property. Even if some of these elements are mobile or deactivated, this does not exclude their potential residential function.
The jurisprudence is clear in considering that the change of intended use can also be determined by minimal interventions, such as the insertion of basic structures for residential use, regardless of their permanence or stability.
The Council of State therefore confirmed that, in the presence of such a clear functional change, no further details are necessary to justify the sanction of demolition. This approach responds to a logic of protection of the orderly development of the territory and prevention of building abuse.
The decision, therefore, leaves no room for doubt: the room had to be returned to its original purpose as a cellar.
