The Council of State has recently dealt with the theme of the building works made with a permit to build lapsed. The story concerns a dispute between a private citizen, a real estate company and the Municipality of Sorrento, regarding the demolition order of some works and the free acquisition of an area in the municipal heritage.

The decision of the Council of State, which partially welcomes the appeals presented, clarifies important principles on the management of incomplete buildings and the responsibilities of the owners in the event of forfeiture of the building permit.

What are the consequences of this sentence for those who create works that are not completed? In which cases is the acquisition of an area by the Municipality legitimate?

Advertisement – Advertising

The judicial case: what happened?

The controversy began when a private citizen obtained a building permit for the construction of a construction work on a land owned in Sorrento. However, over time, the building title is lapsed for failure to build the work in the established timesas established by a formal act of the Municipality on November 22, 2016.

This has made all the works performed up to that moment without it.

The works carried out mainly consisted in excavations, foundation poles and predispositions for an underground structurewithout however reaching a level of completion such as to make them autonomous and functional. Following the forfeiture of the building permit, the Municipality considered that these works were in total discrepancy with respect to current urban planning legislation and therefore issued two measures:

  • A demolition orderwith which the removal of the works carried out and the restoration of the original state of the places was imposed.
  • A free acquisition order of the area to the municipal heritagebelieving that the forfeiture of the permit and the incompleteness of the works justified the acquisition of the entire cadastral particle.

The owners and the real estate company involved challenged these measures, contesting their proportionality and claiming that the intervention could have been completed with a new building project. However, the Council of State stressed that The applicants had not challenged the provision of forfeiture of the building permitmaking its effectiveness definitive.

This prevented them from obtaining a new building permit or of remedying the intervention through a request for urban compliance.

The Regional Administrative Court (TAR) of Campania, at first instance, had given reason to the Municipality, confirming the legitimacy of the contested acts. Not satisfied with the decision, the applicants have appealed to the Council of State, raising several legal issues, including:

  • The alleged disproportion of the acquisition of the entire particle, compared to the only works actually carried out.
  • The possibility of remedying the intervention through a new building permit.
  • The correct interpretation of the legislation on incomplete buildings following the forfeiture of the building title.

To resolve the case, the Council of State deemed necessary an intervention by the Plenary Meeting, called to clarify an important principle of law: Which discipline applies to construction works made on the basis of a permit to build and never completed?

Advertisement – Advertising

The decision of the plenary meeting: the principles established

To resolve the legal node raised by the case, the Council of State has submitted a key issue to the plenary meeting: which discipline applies to the construction works made only partially, based on a permit to build lapsed?

With decision no. 14/2024, the plenary meeting provided a clear response, establishing a fundamental distinction between two types of incomplete works:

  • Incomplete works without autonomy and functionality – If the works carried out do not constitute an autonomously usable building organism, the Municipality has a duty to order its demolition and restoration of the state of the places. This principle applies, for example, when only excavations have been built, foundation poles, load -bearing structures without pads or incomplete buildings that cannot be used without further building interventions.
  • Incomplete but functionally autonomous works – If the building intervention, even if not finished, has reached a state of advancement that can be considered independently usable (for example, an almost completed house, in which only internal finishes are missing), then the work could be maintained, provided that the owner obtains a new qualification or ascertainment of urban compliance.

The plenary meeting has also clarified that, in the case of works without functional autonomy, the Municipality must apply art. 31 of the consolidated text of the construction (Presidential Decree no. 380/2001), which requires the demolition and sanction of the loss of ownership of the sedime area in favor of the administration.

However, the possible acquisition of a wider portion of land of the area strictly affected by the abusive works must be adequately motivated, to avoid excessively punitive measures towards private individuals.

This ruling has therefore set a principle of balance between the need to counter the building abuses and the right of the owners to preserve what is legitimately carried out, introducing clear criteria to establish when it is possible to remedy a work and when demolition is mandatory.

Advertisement – Advertising

The reasons for the Council of State

In light of the principles expressed by the plenary meeting, the Council of State examined the specific case and, with the sentence n ° 970/2025, has decided to accommodate only partially the appeals presented by the private individual and the real estate company.

Confirmation of the demolition obligation

The Council of State has established that the works carried out – consisting mainly in excavations, foundation poles and ground levels – they were not autonomous or functional and, therefore, they included among those that must be removed according to art. 31 of the consolidated construction text.

In fact, it was not an almost completed building, but only preliminary works that could not constitute a real building organism.

Consequently, the demolition order issued by the Municipality of Sorrento was considered legitimate. The private individual and the company could not oppose this provision by claiming that the work was recoverable with a new building permit, because the legislation does not allow to maintain structures without functional autonomy after the forfeiture of the building permit.

Partial cancellation of the free acquisition

Another key point of the sentence concerns the free acquisition of the area to the municipal heritage. The Council of State recognized that the Municipality he had not adequately motivated the acquisition of the entire cadastral particlewhich measured about 3,236 square meters, while the works made were interested only in an area of ​​about 1,900 square meters.

According to the consolidated jurisprudence, when a municipality acquires an area following a building abuse, it can only do so within the limits strictly necessary for the restoration of urban planning legality. In the case in question, the Administration had not explained why it was necessary to acquire the entire particle and not only the portion directly involved in the abusive works.

For this reason, the Council of State has The acquisition order limited to the part of land not affected by the works canceledleaving the possibility open for the Municipality to review the question and better motivate a possible new acquisition.

Exclusion of the status of “Flamed owner”

Another important point of the decision concerns the position of the owner of the land, which had tried to demonstrate its extraneousness to the building abuse. However, the Council of State rejected this defense, underlining that:

  • The owner had transferred only the detention of the good to real estate company, but not the actual property.
  • The real estate company acted as hers prosecutor And he had started the work in his name and on his behalf.
  • The owner had not done any concrete act to prevent abuse or to counter the forfeiture of the building permit.

According to the jurisprudence, so that an owner can be considered “innocent” and therefore exempted by urban sanctions, must demonstrate that he is totally foreign to abuse and have done everything possible to avoid it. In the case in question, this did not happen, and consequently the private individual was held responsible, at least in part, of the situation.