Properties before 1967: what happens if the date of construction cannot be demonstrated?

The case of absolute uncertainty

A particular hypothesis occurs when both the private individual and the municipal technical office bring inconclusive elements, which could lend themselves to different evaluations, without being able to materialize into objective certainties (think, for example, of unclear photographs or apparently conflicting documentation).

The issue was examined by jurisprudence with reference to the proof of the construction of a property before 1967, which remained uncertain despite the help of a verifier; we remember, in fact, that it was the so-called Bridge Law n. 761/1967, amending the art. 31(2) of Law no. 1150/1942 (so-called Urban Planning Law), which introduced from 1 September 1967 the obligation to obtain a building permit for buildings built outside the perimeter of the urban centre.

It has been stated(3) in the past, and recently reiterated by the TAR Lazio, Rome, section. II quater, in the sentence. 13 October 2026, n. 16014, which in this case serves as a temper to the general rule, given that the failure to discharge the burden of proof, even in the presence of an appreciable commitment, imposed on the owner by jurisprudence, appears to be a harbinger of unfair consequences and contrary to the spirit that must inform the relationships between the PA and the citizen (in the specific case, faced by the Roman judges, however, there were also uncertainties about the exact definition of the urban centre, in an entity without urban planning tools).

Consequently, when the owner has made all reasonable attempts to arrive at the dating of the property and possibly the judge has ordered an investigation to establish the date of construction of the property and this too has not reached unambiguous results, the consequences of this evidentiary deficit cannot be placed on the owner. And this is based on some relevant elements:

• first of all, the circumstance that before 1967, since no building permit was necessary and it was not necessary to demonstrate the earlier age of the artefact, the author of the same was not seriously required to conserve evidentiary documentation (projects, invoices, etc.), especially in the case of artefacts of limited dimensions; sanctioning today, several decades later, the failure to preserve evidentiary documentation which was not requested and not imposed at the time would appear extremely unfair;
• secondly, the general principle of subjective good faith pursuant to art. 1147 cc requires presuming the good faith of the subjects of the legal system until proven otherwise; However, the dating back in time of the creation of the artefact cannot result in an exception to the provision of the art. 1147 cc;
• thirdly, when not even the verifier has managed to identify with certainty or a reliable approximation the date of creation of the disputed artefact, it must be valued pursuant to art. 1147 cc the declaration of the private party, as it does not seem reasonably expected that the owner suffers the resulting negative consequences(4).

Otherwise, in the event that the private individual is unable to provide any supporting evidence, the consequences can only fall on him.

Notes

(1) Among many, cf. recently TAR Lazio, Rome, section. II quater, sentence. 9 September 2026, n. 14719 and sent. 13 October 2026, n. 16014; Latin, sec. II, sentence. 24 January 2026, n. 45; Council of State, sec. II, sentence. 19 January 2026, n. 394.
(2) Art. 10 of Law no. 761/1967:
Article 31 of law 17 August 1942, n. 1150, is replaced by the following:
“Anyone who intends to carry out new buildings within the municipal territory, expand, modify or demolish existing ones or proceed with the execution of urbanization works on the land, must ask for a specific license from the mayor.
For works to be carried out on state-owned land, including maritime state-owned land, with the exception of works intended for national defence, it is the responsibility of the Public Works Administration, in agreement with the administrations concerned and having consulted the Municipality, to ensure that the works themselves do not conflict with the provisions of the general master plan or the building regulations in force in the municipal territory in which they fall.
For works to be built by private individuals on state-owned areas, the mayor’s license must always be requested.
Deeds of sale of land illegally subdivided for residential purposes are void if they do not show that the buyer was aware of the lack of an authorized subdivision.
The granting of the license is however and in any case subordinated to the existence of the primary urbanization works or to the Municipalities’ forecast of their implementation in the following three years or to the commitment of private individuals to proceed with the implementation of the same at the same time as the constructions covered by the licence.
The mayor’s decisions on building license applications must be notified to the interested party no later than 60 days from the date of receipt of the applications themselves or from the date of presentation of additional documents requested by the mayor.
Once this deadline has expired without the mayor having expressed his opinion, the interested party has the right to appeal against the silent refusal.
The public is informed of the issue of the building permit by posting it on the noticeboard, specifying the owner and the location in which the construction must be carried out.
The posting does not start the deadline for appealing.
Anyone can examine the building permit and the related project documents at the municipal offices and appeal against the issuance of the building permit as it is in conflict with the provisions of laws or regulations or with the provisions of the general master plan and detailed execution plans.
The building permit cannot be valid for more than one year; if the works have not started within this period, the interested party will have to submit a direct application to obtain the renewal of the licence.
The entry into force of new urban planning provisions entails the forfeiture of licenses in conflict with the provisions themselves, unless the related works have been started and are completed within three years from the start date.
The client, holder of the licence, the director of the works and the contractor of the works are responsible for any non-compliance with the general rules of law and regulation as well as with the executive methods set out in the building permit”.
(3) TAR Liguria, sec. II, sentence. 17 January 2023, n. 83,
(4) Council of State, sec. II, sentence. 20 January 2026, n. 418.