When a property is declared abusive, it is the owner’s responsibility to prove that it was built before 1967, a period in which it was not yet mandatory to obtain a building permit. This legal responsibility entails the need to present concrete and reliable evidence to avoid severe sanctions, such as a demolition order.
But what is acceptable evidence? What are the legal consequences for those who fail to meet this burden of proof?
Let’s discover together the answers to these crucial questions, also exploring the current jurisprudential orientation and the regulations in force.
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The burden of proof
The interested party, i.e. the owner of the property, has the responsibility of demonstrate the construction period and completion of the artifact. This proof is essential to prevent the property from being considered abusive and, consequently, subject to a demolition order.
The Council of State, with the ruling of 24 June 2024, no. 5547, confirmed this responsibility by rejecting an appeal against a demolition order, since the appellant had not provided sufficient evidence demonstrating that the building had been built before 1967.
This ruling reinforces a well-established jurisprudential orientation that places the burden of proof on the owner.
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Legitimacy of pre-’67 works
Buildings constructed before 1967 are considered legitimate even without a building permit, since the obligation to obtain such a concession was introduced only with Law no. 765/1967, known as Bridge Law.
However, in order for these works to benefit from a special amnesty, it is necessary for the owner to provide concrete and documented evidence attesting to the construction period.
Acceptable evidence may include:
- aerial photogrammetry,
- declarations in lieu of a notarial deed
- other documentation demonstrating the date of construction before September 1, 1967.
Only the owner can present irrefutable or highly plausible elements to support the legitimacy of the work. In cases where the Municipality provides uncertain evidence on the date of construction of the artifact, a tempering of the burden of proof could be allowed.
However, in the specific case of the cited judgment, the conditions for such a reduction of the burden of proof were not identified.
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The ruling of the Council of State
The Council of State, in its ruling of 24 June 2024, no. 5547, rejected an appeal against a demolition order, highlighting that the ruling of the criminal judge who had declared the appellant’s thesis reliable was based on confused and fragmentary testimonies.
The ruling emphasizes the importance of providing solid and unequivocal evidence to demonstrate the legitimacy of construction work carried out before 1967. Furthermore, the property in question was located within the municipality’s cemetery buffer zone, an area subject to an absolute building ban.
