Rule
The autonomous legitimacy of the abuse manager who is different from the owner is reasonable, as the amnesty can be requested not only to consolidate in the right of ownership what is abusively carried out but also only to qualify the construction as no longer abusive, for example for reasons of professional honorability in the case of the designer or the works manager, or to avoid incurring the criminal consequences referred to in art. 44 of the Consolidated Building Text in the case of the author’s author of the works.
Moreover, on closer inspection, also art. 11 Presidential Decree 380 of 2001, in regulating the building permit for works not yet carried out, indicates among the entities entitled not only the owner, but also those who are entitled to request it, with this by configuring an not mandatory legitimacy connected with the ownership of the property. In this hypothesis, however, a figure of legitimated that may oppose the owner’s willingness not to proceed with the building does not emerge with the same clarity.
In the case of the amnesty of illegal works, however, it is the same legislator through art. 36 Presidential Decree 380 of 2001 to identify, next to the owner, the author of the abuse, both placing on the same level.
The contrast between the co -owner author of the abuse and the other co -owners
In the factual reality there may be more authors of the abuse but also more co -owners and that the positions of these subjects can converge but can also come into conflict.
In case of contrast, as highlighted by the Lombardy Tar, Brescia, section II, in the sent. July 21, 2025, n. 703, examining the case of a building permit in amnesty required by a co -owner author of the abuse in contrast to the other co -owners, the task of the municipal technical office is not to resolve any private disputes for the benefit of some and disadvantage of others, but to exercise their powers, avoiding affecting the civil and criminal level.
When requested to verify the compliance of the illegal works in accordance with the provisions of art. 36, the office must therefore pronounce even if the application comes from only one of the legitimated subjects. Once declared (or denied) the assessment of conformity, the task of the administration is concluded, and it is responsible for private individuals to take action to compose the contrasts of a civil nature.
As for the material permanence of the works that is no longer abusive, the assessment of conformity does not bind the dissenting owners to leave them in place. If the amnesty has been obtained by the designer or by another person who intervened professionally in the construction, the owners can still have the demolition, except in the civil issues on any compensation for the damage. On the other hand, when the amnesty was obtained by one of the co -owners, the possible demolition assumes that it is clarified before the ordinary judge if the reasons of the individual co -owner or those of the communion or the condominium prevail.
In this regard, the provisions of art. 11 of the Consolidated Building Text, on the basis of which the building permit in itself does not entail limitations to the rights of third parties. This applies not only to the time of issuing a building permit before the start of the works, but also in the case of the amnesty of illegal works, where legitimacy is also extended to a non -owner. The amnesty can not have effects on the rights of third parties regarding the fate or use of goods, but at the same time the dissenting co -owners cannot inhibit the power of the administration to declare the compliance of the abusive works to the urban discipline.
Ultimately, the assessment of conformity cannot be prevented, but will not be able to change the underlying dominical regime or alter the strength relationships within the communion or condominium.
The jurisprudence
It is correct to highlight that, according to a jurisprudential orientation, the amnesty must be considered inadmissible when there is the opposition of the other co -owners, “On the other hand, the individual co -owner only and exclusively in the event that the factual situation existing on the asset allows to assume the existence of a sort of CD. Pactum trust between the various co -owners“(3).
Nonetheless, the Brescia judges considered that jurisprudence (4) according to which the administration is “more acceptable”required to issue the qualification Building having exclusive regard to the urban compatibility of the required work – which does not imply at all that it is not harmful to subjective rights of others – leaving each issue relating to subjective rights to its only competent location, which is the civil judgment“; This is not to compete with the administration to evaluate, not even incidentally,”if the work integrates an alteration of the destination of the common thing (of which a single communist wants to use exclusively); nor if this use is compatible with the equal use of others; nor, finally, whether or not the work is harmful to the architectural decoration of the building (this evidently being able to be up to, but only in the appropriate cases, to the administration of cultural heritage)“.
In collaboration with Studiolegalepetrulli.it
