The construction contribution it is often subject of dispute between citizens and the technical office and, consequently, it represents an always interesting subject in the jurisprudential panorama.
We would like to point out to our readers two recent rulings which offer us the opportunity to better investigate a very important aspect, that of prescription of the construction contribution.
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The general rule regarding prescription
As recalled by the Council of State, sec. IV, in the sentence. 7 January 2025, n. 69, the documents with which the Public Administration determines and pays the construction contribution, provided for by the art. 16 of Presidential Decree 380 of 2001, do not have an authoritative nature, as they are not expression of public authoritybut they constitute the exercise of one faculty connected to the credit claim recognized by law to the Municipality for the issuing of the building permitgiven its onerousness, in the context of a mandatory relationship of an equal nature and subject, as such, to the ten-year statute of limitations(1).
With reference to two components of the construction contribution (construction cost and urbanization charges), the jurisprudence (2) has recalled that the limitation period of the credit right underlying the collection of the concession charges is, for both hypotheses, ten years; however, the right becomes enforceable and, therefore, the limitation period begins to run:
- for urbanization charges, from the moment it is released or however it is formed the building title;
- for the construction cost, from the communication to the Municipality of the end of the worksas provided by the art. 16, paragraph 3, of Presidential Decree 380/2001(3).
In the specific case analyzed by the judges of Palazzo Spada, the Municipality’s claim was effectively time-barred given that the building permits had been issued on 22 October 2007 and, as regards urbanization charges, only on 7 March 2019 (i.e. well beyond the ten-year period ) the Municipality requested payment.
The starting date of the statute of limitations in the case of concession charges in installments
The TAR Lazio, Rome, section. II bis, in the sentence. 2 January 2025, n. 67, took care of the commencement of the statute of limitations in the case of concession charges in installments.
Pursuant to art. 2935 cc, “The limitation period begins to run from the day on which the right can be asserted”; therefore, in the presence of installments of concession charges each characterized by its own precise expiry date dictated in the sole interest of the debtor (the presumption dictated by art. 1184 of the civil code also being applicable on this point), the circumstance that the related payments cannot be claimed before (see art. 1185 cc: “the creditor cannot demand performance before the deadline, unless the deadline is established exclusively in his favor“) implies that the course of the prescription can only start with the expiry of the same deadlines(4).
The Lazio judges also highlighted that:
- for the purposes of interrupting the limitation period of the sanction for late payment of concession charges, not measures such as the approval of a variant or may be taken into considerationStill, the extension of the deadline set in the building permit for carrying out the worksas these documents do not have the form or substance of real payment orders, pursuant to art. 2943 of the civil code;
- in the same way, interruptive relief cannot be attributed, pursuant to art. 2944 cc, not even to the payment of urbanization charges, since the obligation concerning the sanction on urbanization charges is distinct and autonomous compared to that having as its object the aforementioned charges, also considering that the respective reasons are different as are the corresponding credits which, as heterogeneous rights, are subject to different limitation periods, that is: ten-year period as regards urbanization costs(5), e five-year period with regards to the attached sanctions for late payment of the former(6).
Notes
(1) Council of State, Ad. Plen., 30 August 2018, n. 12.
As highlighted by the Basilicata TAR, section. I, in the sentence. 26 February 2024, n. 102, the limitation period for sanctions for late payment of the contribution due for urbanization costs and construction costs is, however, 5 years (“According to the prevailing jurisprudential orientation (see, lastly, Council of State, section VII, sentence of 28 April 2023, n. 4325; TAR Basilicata, section I, sentence of 22 January 2015, n. 64), the term of prescription of sanctions pursuant to art. 42, paragraph 2, Presidential Decree no. 380/2001, imposed for late payment of the contribution due for urbanization costs and construction costs, is 5 years, as art. 28 L. n. 689/1981, which establishes that “the right to collect the sums due expires within 5 years”, since the art. 12 of the same Law n. 689/1981 expressly establishes that the articles. 1-43 of this Law “are observed for all violations for which the administrative sanction of payment of a sum of money is foreseen, even when this sanction is not foreseen in place of a criminal sanction”, i.e. for all administrative sanctions of an afflictive nature, which also includes those resulting from the delayed payment of contributions relating to the building permit. Pursuant to art. 2948, no. 4, cod. civ., the five-year limitation period also applies to the payment of legal interest.”)
(2) TAR Lombardy, Milan, sec. I, heard. 8 June 2024, n. 1736.
(3) Council of State, sec. IV, sentence. 19 December 2023, n. 11022.
(4) Cassation civ., sec. VI, sentence. 25 January 2018, n. 1947.
(5) TAR Piedmont, section. II, sentence. 8 July 2014, n. 1168.
(6) TAR Campania, Naples, sec. VIII, sentence. 16 April 2014, n. 2170; TAR Umbria, judgement. 20 December 2013, n. 567.
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