Legitimate state of properties: lights and shadows two years after Salva Casa

Overview of the three paragraphs of the art. 9-bis, Presidential Decree 380/2001 subsequent. mod.

The art. 9-bis, in fact, is made up of three paragraphs which, in turn, govern three major themes:

• the first refers to the prohibition for the administration to request from the private individual documents that are already in his possession (so-called principle of decertification) or, in any case, to request certifications on the truthfulness and authenticity of such documents, information and data (paragraph 1);
• the second concerns the methods through which it is possible to certify the legitimate status of the property, even in the absence of an express building permit, as well as the value to be attributed for this purpose to amnesties or amnesties, whatever you prefer, as well as what is meant by the principle of proof (paragraph 1-bis);
• the third is related to the relationship between the non-conformities of the building and the non-conformities of the individual real estate units whose possible respective presence, in summary, does not reverberate on the others (paragraph 1-ter).

Much has been said and written on each of these profiles, both at a doctrinal and jurisprudential level (see the numerous contributions published on this site, easily found using the “search” function).

The current picture

However, the jurisprudential framework is not uniform, especially as regards the value to be attributed to the title in amnesty for the purposes of certifying the legitimate status, i.e. the second topic discussed in the previous paragraph.

In this regard, in fact, there are two orientations that could not be more different from each other. Readers of the site will already have understood what I mean to refer to.

We have, on the one hand, the ruling of the Council of State, section. IV, n. 2848/2026, which can be consulted at the end of this contribution, which gives full relevance to the qualification issued or obtained in amnesty.

On the other hand, we are faced with the ruling of the Constitutional Court n. 86/2026, also downloadable at the end of the contribution, which adopts a more restrictive approach.

What do the two sentences say

According to the ruling of the Council of State n. 2848/2026, the title in the amnesty takes on equal dignity with respect to the other building titles referred to in article 9-bis, paragraph 1-bis of Presidential Decree 380/2001 and can therefore certify the conformity of the property with building practices. The maxim of the sentence, provided on the institutional website justice-administrativa.itis reported verbatim below:

“The property subject to building amnesty, in light of art. 9-bis, paragraph 1-bis, of the Presidential Decree of 6 June 2001, n. 380, acquires full urban planning legitimacy and can be subjected to all building interventions permitted for legitimately consented properties, including building renovation, not being limited to maintenance interventions only.”.

In a favorable sense to the relevance of the amnesty, recognized at a jurisprudential level, art. 1, co. 23 of law no. 199/2025 (so-called Budget Law 2026) which allows the urban regeneration or urban redevelopment interventions envisaged by the so-called. Development Decree (art. 5, co. 9 and 10, DL no. 70/2011, converted, with amendments, into ln 106/2011), not only for buildings for which the building permit has been issued by the Municipality in amnesty but “Also” for those whose title to the amnesty has been “achieved” pursuant to the three laws on building amnesty (laws no. 47/1985, no. 724/1994 and no. 326/2003), i.e. through the application of the silent consent mechanism.

The ruling of the Constitutional Court n. 86/2026, however, while referring to the legislation of the Region (with a special statute) of Sardinia, seems to limit the legitimizing effects of the amnesty to only ordinary and extraordinary maintenance, restoration and conservative redevelopment interventions, excluding the possibility of using it for extensions and volumetric increases on properties, with the partial exception of building renovation interventions “aimed at protecting the integrity of the building and preserving its functionality”.

Indeed, precisely in relation to the art. 5, co. 9 and 10 of the Development Decree, as integrated by the 2026 Budget Law, the ruling of the Council specifies that this provision “it acts as a special rule which, as such, confirms the general principle of the prohibition of volumetric benefits, arising from nature extra ordinam of the building amnesty”.

Conclusions

However, as observed by the lawyer. Gualandi in his contribution “Building renovation on forgiven properties: full or halved legitimate status?” published on ingenio.itthis last reconstruction presents problematic aspects.

In fact, it risks being in tension with the most recent regulatory data mentioned above and, above all, affecting the operation of building practices even beyond the regulations of the Sardinia Region.

If the interpretation of the Constitutional Court were to be generalized, in fact, the private individual whose urban planning instrument recognizes a greater building possibility for his property would not be able to benefit from it simply because he had obtained an amnesty in the past which, unlike what was stated by the Council of State and appropriately highlighted on this site, would be considered “series B”.

A note on the (questionable) future prospects

In perspective de jure condendofinally, art. 4, co. 1, letter. d) of AC bill n. 2826, i.e. the enabling law which should lead to the adoption of a future Construction Code.

Well, while waiting to know the parliamentary developments (as of 20 May 2026 the text is being examined in the Commissions) and, above all, the content of the new Construction Code whose gestation does not seem so close, the art. 4, co. 1, of the DDLAC n. 2886 seems to entrust the professional with the burden of proving the building permit we mentioned at the beginning, through a sworn declaration regarding the details of the original title and any subsequent titles.

It is no coincidence that contrary voices were supported by the Network of Technical Professions in the memorandum of 6 May 2026, filed in the documents of the VIII Environment Commission of the Chamber of Deputies, of which an excerpt is reported: “It is not desirable to ask the technician to certify the legitimate status based on provisions and titles in which he has often had no part in any way and without being certain that the documents extracted represent the entire history of the property“, in contrast with the provisions of paragraph 1 of the current art. 9-bis, Presidential Decree 380/2001 on the subject of decertification which we talked about in the initial overview.

Will this approach be maintained in the future Construction Code or will the objections of the Technical Professions Network be accepted, which, in my opinion, are widely acceptable? Quoting the lines of the well-known song, which have now become proverbial, “we will only find out by living”.