The case: abuses represented but not remedied
The case examined concerns a complex of buildings in a restricted area where the owners had created numerous discrepancies with respect to the building permits: garage with dimensions different from the amnesty, modifications to the openings, transformation of the attic into habitable rooms. Over the years, some of these works had been represented in the graphic documents attached to subsequent building practices (SCIA, building permits) which had as their object other interventions, such as the re-roofing or the renovation of portions of the building.
The owners argued that this representation had in fact legitimized the discrepancies, generating a protectable trust, i.e. the legitimate belief that the works were regular by virtue of the behavior of the Municipality. The Municipality, on the contrary, had ordered the demolition, considering the works untitled. The Council of State agreed with the administration without the possibility of appeal.
Graphical representation and legitimate state, distant scopes
The principle stated by Section II is clear: “the representation of a certain situation in the document relating to the state of fact presented in support of a construction practice does not in itself only legitimize it”. The consent of the Municipality, explains the sentence, concerns the transformation project presented, while the state of fact constitutes the prerequisite for that evaluation, not the object of the authorization.
In other words: if a technician attaches to a SCIA for internal modifications the representation of a pre-existing building abuse – for example an open window without a title – the Municipality that authorizes the internal modifications is not implicitly remediating that window. The authorization covers only the requested interventions, not the state of fact represented in the documents.
The legitimate state after the Save Casa
The ruling expressly recalls the changes made to the art. 9-bis of the Consolidated Construction Law by the Salva Casa decree regarding legitimate status. The new paragraph 1-bis establishes that the legitimate status of the property can be determined by the title that approved the last building intervention “provided that the competent administration, when issuing the same, has verified the legitimacy of the previous titles”.
Without this explicit verification by the Municipality, the simple graphic representation does not produce any amnesty effect. As the Council of State clarified in sentence no. 4127 of 14 May 2025, also cited in the ruling in question, “the legitimate status of the pre-existing buildings cannot extend to the works merely represented in the graphic document produced to accompany the building permit presented or issued for other and different works”. In essence, those who faithfully represent the state of fact in the documents – a correct and dutiful practice from an ethical point of view – cannot believe that this entails any form of implicit legitimation of any discrepancies present. If there are building violations in the property, they remain so even after being drawn in dozens of subsequent practices.
There remains the possibility of requesting an amnesty through the tools provided by law – assessment of conformity pursuant to art. 36 or SCIA in amnesty pursuant to art. 37 of the Consolidated Construction Law – but it is necessary to verify that the legal conditions exist, first of all the requirement of double conformity. Furthermore, in the case examined by the Council of State, the administration had correctly rejected the SCIA in amnesty because the interventions (changes to the shape in the restricted area) required verification of conformity with a building permit, as they could not be remedied with a simple report.
No to protectable custody due to failure to contest the papers
The ruling excludes the possibility that the administration’s behavior may have created a protectable trust in the owners. If the Municipality has not explicitly verified the legitimacy of the pre-existing works, the private individual cannot invoke any form of implicit acquiescence or amnesty based solely on the fact that those works were represented in the documents of subsequent practices.
The principle also applies when the discrepancies are evident in the graphic documents filed: the burden of identifying and sanctioning them remains with the administration, but the passage of time or the issuing of other building permits do not produce legitimizing effects in the absence of an express verification.
Corrected the revocation of the landscape authorization in self-defense
Finally, in the ruling, the Council of State agreed with the Municipality also regarding the revocation of landscape compatibility in self-protection. The Municipality, in fact, has the right to carry out new assessments, even in self-defense, and therefore revoke previous decisions, where the conditions exist, as in the specific case.
Table: What constitutes legitimate status
| It constitutes a legitimate state | It does NOT constitute legitimate status |
| Building permit that approved the work (building permit, DIA, SCIA) | Graphic representation of the actual state in documents attached to subsequent building practices |
| Last building permit IF the Municipality has expressly verified the legitimacy of previous permits (art. 9-bis paragraph 1-bis) | Works represented in practices that had other interventions as their object |
| Sanatorium through assessment of conformity pursuant to art. 36 or SCIA in amnesty pursuant to art. 37 | Tolerance or inertia of the Municipality even in the presence of known discrepancies |
| Building amnesty completed | Assignment of the private individual based on the failure to contest the works represented in the documents |
| Positive verification by the administration at the time of issuing the title on the legitimate state of the pre-existing structures | Elapse of time from the realization of the abuse |
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