Amendments to art.37 and new art.36-bis of the TEU: pecuniary sanction and assessment of conformity
The amendment made to article 37, paragraph 1, concerns thetightening of the financial penalty: this it went from double to triple the increase in the market value of the property consequent to the implementation of the abusive interventions and in any case in an amount not less than 1,032 euros. The sanction, based on the value added to the property with the illegal intervention, is determined by the person in charge of the proceedings after evaluation by the competent offices of the Revenue Agency.
Paragraph 4, which regulated the assessment of conformity, or the amnesty in the case of (double) conformity of the intervention with the urban planning and building regulations in force both at the time of the implementation of the intervention and at the time of presentation of the amnesty, was repealed. The amnesty for the absence or non-compliance with the SCIA is now governed by the new art. 36-bis introduced into the TEU. Works carried out without or in breach of the ordinary SCIA can now obtain the assessment of so-called “simplified” compliance if the intervention is compliant:
- to the urban planning regulations in force at the time of filing the SCIA in amnesty e
- to the requirements prescribed by the building regulations in force at the time of construction.
Below we analyze three typical cases of abusive works subjected to the pecuniary sanction referred to in the art. 37, paragraph 1 of the TEU e how to proceed.
Case 1: works compliant with urban planning regulations at the time of presentation of the SCIA in amnesty but not with the technical regulations in force at the time of the illegal intervention
The intervention can be regularized through the SCIA in amnesty, provided that the “simplified” double compliance as provided for by the art. 36-bis of the TEU: the work must comply with both the urban planning regulations in force at the time of filing the SCIA in amnesty and with the requirements prescribed by the building regulations in force at the time of construction.
If regularization is not possible due to lack of conditions and it concerns “mild abuses”, the demolition does not proceed and the financial penalty provided for in article 37, paragraph 1 which, as previously mentioned, is equal to three times the increase in the market value of the property resulting from the illegal works with a minimum of 1,032 euros.
The works for which payment of the pecuniary sanction is permitted, as expressly indicated in the art. 37, paragraph 1, are the interventions referred to in the art. 22, paragraphs 1 and 2 (1) carried out in the absence or non-compliance with the SCIA.
Case 2: illegal works compliant pursuant to article 36-bis for which, however, the owner does not submit a request for a conformity assessment
In this situation, if the owner fails to present the SCIA in amnesty despite the abstract conditions for the assessment of conformity being present, the SUE (One Stop Shop for construction) will still have to apply the financial penalty provided for by article 37, paragraph 1, having to conclude the sanctioning procedure.
Case 3: non-compliant abusive works
In this case we are talking about non-compliant abusive works for which the competent administrative authority decides to do not proceed with the order to restore the state of the premises. This situation is similar to the provisions of the art. 33 of the Consolidated Construction Law for building renovation interventions in the absence of a building permit or in total non-conformity.
The illegal work it cannot be regularized because it does not comply either at the time of implementation or at the time of presentation of the SCIA in amnesty.
Without prejudice to the general rule according to which the pecuniary sanction is foreseen in cases of absence or non-compliance with the SCIA indicated in paragraph 1 of the art. 37, however, if the Manager decides, with good reason, not to order the demolition (for example assessing the impossibility of restoration without causing damage to the compliant part), the pecuniary sanction of three times the increase in market value is applied. of the property resulting from the illegal works.
In that case the sanction effectively operates as “taxation”similarly to what is provided for in the cases referred to in Articles 33 and 34 of the TEU.
Notes
(1) The following interventions can be carried out with ordinary SCIA:
a) extraordinary maintenance referred to in art. 3, co.1, lett. b) if they concern the structural parts of the building or the elevations;
b) restoration and conservative rehabilitation referred to in art.3, co.1, lett. c) if they concern the structural parts of the building;
c) building renovation referred to in art.3, co.1, lett. d) other than those indicated in article 10, paragraph 1, letter c). Variations to building permits which do not affect the urban planning parameters and volumes, which do not modify the intended use and the building category, and which do not alter the shape of the building if subject to restrictions, can also be achieved by means of a certified notification of the start of activity. pursuant to Legislative Decree 22 January 2004, n.42 and subsequent amendments and do not violate any provisions contained in the building permit.
