The illegal property
A first aspect to consider is concept of “building abuse”.
It is estimated that in our country there are numerous properties with urban planning/building irregularities; I am indirect confirmation of this three amnesties which have occurred since 1985 and the continuous attention of the legislator to simplify the matter and typify the qualifications. In this broad case study we can have a “modest” abuse (e.g. an internal renovation of the rooms not reported in the land registry) or a abuse of “particular gravity” (e.g. a property built without a permit in a restricted area); between these extremes there are many intermediate situations with a thousand facets that are difficult to classify.
Imagining to compare theserious abuse of the color black and theabsence of white irregularitiesthe difference between the two extremes would be filled by one infinite series of gray shades.
The illegal property and the consequences for the heir
With respect to the questions raised, we therefore focus on the possible consequences, for the heir, of an “illegal” property, here assuming that the abuse consists of a significant urban planning/building irregularityas in the case of a completed work in the absence or non-compliance with the building permit.
In the case of small-scale abuses, they often escape any census and, in any case, their amnesty will certainly be easy. As regards the major abuses the sector regulations have prepared a complex sanctioning system which moves in three directions:
- the criminal penaltiesof arrest and fine, against those who built the illegal building and, in some cases, the confiscation of the property;
- the administrative sanctions the demolition of the illegal building or its free acquisition to the municipality's assets;
- the civil penalties of the non-negotiability, with inter vivos deeds, of the real rights relating to the said building.
While the criminal penalties (arrest and fine) are linked to the “person” and – as such – are not passed on to the heir, the administrative and civil sanctions I am linked to the “good” and therefore also apply to the heirs of the perpetrator of the abuse (and in any case to the owners in any capacity). Also there confiscation adopted in criminal proceedings – having the nature of an administrative sanction – follows the property and, therefore, can be enforced even if the property has a different owner.
Hereditary succession
There hereditary succession (called “mortis causa”) is the procedure by which the rights of a deceased person pass to another person: the heir.
L'inheritance it is the set of rights of the deceased (said de cuius). For the heir to take over all the active and passive relationships of the deceased, however, it is necessary that he do you accept such quality; it is indeed possible give up the inheritance when, for example, the deceased's debts are greater than credits; in this way the person destined to be the heir causes the effects that have occurred towards him following the opening of the succession to cease and remains completely unrelated to it.
Alternatively it is admitted, opting for acceptance with “benefit of inventory” (art. 470 cc) be responsible for liabilities within the limits of the hereditary assets.
The heir and the management of the illegal property
So, imagining an heir who has accepted the inheritancewe have already clarified that while the criminal aspects they don't have to worry him, it's a different story for them administrative and civil.
As for the former, the heir risks being notified demolition order (at his expense) of the property and, in case of non-compliance, the free acquisition of the same to the municipality's assets.
As for the profile civil the main problem for the heir (although not the only one) is linked to the fact that he will not be able to sell the property; a situation that becomes even more difficult to manage if the same property has been inherited by multiple individuals.
In this regard theart. 40 from the law 471985 predicts that the sale of a property is void (therefore the notary will not be able to sign the deed) if are not included in the bill of saleper the seller's declaration, the details of the building permit or amnesty permit. Therefore illegal properties (untitled and not remediated) they cannot pass ownership from one person to another; the only exception is the case in which the transfer of ownership occurs following hereditary succession; the heir will be the new legitimate owner, but he will neither be able to sell it nor donate it.
On this issue the United Sections of the Supreme Court (sent. 82302019) specified that nullity is determined only by failure to include the qualifying document in the deed of sale of the property or in the case of insertion of a “non-existent” title. On the contrary, in the presence in the deed of the details of the urban planning title (provided it exists and refers to the property to be sold) the contract is valid regardless of the profile of conformity or non-conformity of the construction carried out under the mentioned title.
The relevance of abuse to unmarketability
This decision is particularly important because – by modifying a previous direction that was not always uniformly applied – limits the limits to non-marketability of the property reporting them only in the case in which it is not possible to indicate the details of the qualification in the document. Previously, however, the Supreme Court, in various decisions, had considered it similar to the built property without title, the one built with “essential variations” compared to what is foreseen in the permit.
The United Sections, however, justify the new, more restrictive direction on the assumption that identify a threshold of “relevant abuse” (i.e. different from the work created without title) would involve recalling an indeterminate system, entrusted to graduations of urban planning irregularities concretely difficult to identify and, ultimately, impermissibly entrusted to the discretion of the interpreter. Alone failure to indicate the qualification in the deed (or the indication of false data) entails nullity and therefore it is unmarketable – and therefore the heir cannot alienate it – not every “illegal” property, but only that carried out in the absence of a qualifying qualification or without an amnesty qualification.
The restriction of this field of application – resulting from this direction – is very important (net of future different orientations) but does not circumscribe the entire scope of “civil” problems; also different abuses, more or less “serious”, if they do not prevent the sale could lead the new owner who purchased from the heir to take legal action against the latter to be recognised the damages suffered following the purchase of an asset which later turned out not to be “regular”.
The problems in case of multiple heirs
The “hereditary communion” is a particular form of “community” – that is, when property or other real right belongs to several people in common – which concerns the assets that made up the assets of the de cuius. It is automatically constituted among the heirs when, following the opening of a succession mortis causa, there are a plurality of those called to the inheritance and a plurality of acceptances. Every co-sharer holds the right to the entire asset for an ideal share: the “share” is the measure of co-ownership due to the participant in the communion. Every communion is, by its nature, “transitory”, being able to cease at any time by will of all the co-heirs: “contractual division” or with a specific ruling by the judge: “judicial division”.
Addressing the issue of division of an illegal property owned by multiple co-heirs, the United Sections of the Court of Cassation (sent 250212019), modifying a previous orientation, has established that the communion cannot be dissolved either by agreement of the parties or by the judge's sentence. It follows that if the heir of an illegal property cannot sell it – but could continue to use it – the “co-heirs” find themselves having to “manage” a property that not only cannot they see to third parties, but cannot even assign ownership to just one of them, thus making it impossible to divide the entire inheritance, whether it consists of the illegal property alone or whether it is made up of multiple assets.
The amnesty of the illegal property
It is evident, then, that to avoid problems of any kind thethe only viable route for the heir of the illegal property, is that of heal the abuse. Although unmarketability is a very sensitive issue (and for these reasons it has been explored in detail above) it should not be underestimated administrative sanctions, which can occur even many years after the commission of the abuse. The heir, the new owner, as long as he does not remedy the situation, always runs the risk of being ordered to do so demolition of the property pending the imprescriptibility of the administrative action. It is therefore necessary to rely on technicians in the sector and follow a procedure, which is certainly onerous, but once the result has been achieved the heir (or co-heirs) will be able to have full rights over the property: they will not have to fear sanctions of any kind and will be able to (they or their future heirs) sell the property when and if they deem it useful.
The main tool is to request the building permit in amnestythe assumption of which is that the intervention results compliant to urban planning and construction regulations current both at the time of its implementation and at the time of submitting the application. This is provided for by the art. 36 of TU 380/2001 – for interventions carried out in the absence of a building permit, or in non-compliance with it, or in the absence or in non-compliance with the alternative SCIA – and by art. 37 of the Consolidated Law, for interventions carried out in the absence or non-compliance with the SCIA. In the presence of these conditions it will be easy to obtain the desired result.
It must be added that if, as a rule, the “double compliance” it is also true that administrative jurisprudence has developed the figure of amnesty “jurisprudential” or “improper”. In fact, in some decisions the Council of State(1) admitted the possibility of remediating the works which, although not compliant with urban planning and building regulations at the time of construction, became so at the time of submission of the application. The argument in favor of the right to issue the title posthumously was that of its absolute conceptual homogeneity with the title issued ex ante whose duty cannot be doubted; it would be inconceivable to order, today, the demolition of a building with characteristics that could legitimize, tomorrow, the issuing of a building permit for that same property. However, it should be noted that administrative jurisprudence does not appear uniform; if it is argued that it makes no sense to consider illegitimate and perhaps demolish a work that could well be built at that moment, it is also stated that, however, doing so would end up protecting the interests arising from illegal behavior not worthy of protection.
Criminal jurisprudence, however, has stated that a amnesty permit issued pursuant to the so-called jurisprudential amnesty it does not extinguish the urban planning offense; however, the conformity assessment which certifies (solely) compliance with the regulations in force, prevents the judge from ordering the demolition of the building.
(1) Advice of State, sec. V, sent. n. 238 of 13 February 1995; sent. n. 1031 of 13 October 1993
