The demolition of illegal works is one of the most controversial issues in construction law. Many owners rely on amnesty applications to suspend a demolition order, but the conditions for their acceptance are far from a given. This theme has been at the center of recent times sentence no. 45426 of 2024which examined the case of an illegal property for which they had been presented four applications for amnesty.
Despite these requests, the criminal judge had ordered the demolition to be carried out, prompting an appeal from the owners, who contested the legitimacy of the order on the basis of the pending amnesty procedures. In this ruling, the Court of Cassation clarified the limits within which an amnesty can influence a demolition order, balancing compliance with urban planning law with the rights of owners.
So what are the criteria by which an amnesty can suspend a demolition? And what responsibilities weigh on those who inherit illegal properties?
Let’s dig into the details of this case to answer these questions.
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The case: complaints and the owners’ line of defence
The case concerns an illegally built property, for which a demolition order had been issued. The appellants, linked by family ties to the original perpetrator of the abusecontested the ordinance on the basis of various reasons.
The current owner of the property argued that the demolition was unlawful due to the pending four applications for building amnesty. According to the defense, these questions should have suspended the execution of the order, given that their definition falls within the exclusive competence of the Municipality. Furthermore, it was highlighted that the Municipality’s failure to respond to the amnesty requests could not be attributed to the appellants, thus making the immediate application of the sanction inappropriate.
A further argument of the defense was the alleged absence of a real interest on the part of the public body in the demolition, especially after a long period of administrative inactivity. The owners also argued that the criminal judge should not have expressed his opinion on the demolition order, leaving the responsibility to the municipal administration.
At the same time, another appellant, presenting himself as the heir of the original client, rejected the demolition injunction claiming that he was not the actual owner of the property. His defense was based on the fact that the property was not formally transferred to him jure successionis. In this context, it was underlined that, in the absence of documentary evidence of ownership, he could not be held accountable for a building violation to which he was unrelated.
The defense therefore articulated a two-pronged strategy: on the one hand, the ineffectiveness of the injunction due to the pending amnesty applications; on the other, the absence of a direct legal connection between one of the appellants and the ownership of the illegal property.
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The judge’s decision and its reasons
The Court of Cassation, in sentence no. 45426 of 2024, carefully examined the appeals, adopting different decisions for the two cases presented. The owner of the illegal property had her appeal declared inadmissible. The judge justified this decision by underlining that, although four applications for building amnesty had been presented, these they were not sufficient to suspend the demolition order.
The Court ruled that the simple fact of having pending applications cannot block the execution of the sanction if there are no concrete elements demonstrating a probable and rapid definition of the practices. Furthermore, the questions dated back over twenty years, a time deemed incompatible with the hypothesis of an imminent and favorable outcome.
The judge also clarified that theinertia of the municipal administration does not exempt the criminal judge from his obligation to order the demolition, the purpose of which is the restoration of urban planning legality.
This principle, enshrined in art. 31 of Presidential Decree n. 380/2001gives the judge an autonomous power that does not depend on the timing or any omissions of the Municipality.
As regards the second appellant, indicated as the heir of the person who committed the abuse, the Court partially accepted his reasons. The judge deemed it necessary to verify in greater detail his actual ownership of the illegal property.
The Court established that the demolition injunction cannot be addressed to a person who is not the actual owner of the property. In the absence of documentary evidence demonstrating the transfer of the asset jure successionis, the direct responsibility of the heir cannot be presumed. Consequently, a referral was made to the Court of Appeal for further investigations into ownership and related responsibilities.
The Court’s decision, therefore, balances two fundamental needs: on the one hand, the rigorous application of the rules to protect urban planning legality; on the other, the need to guarantee that personal responsibilities are attributed only to those who are legally entitled, avoiding extending such incisive obligations to those who do not have a direct link with building abuse.
