The recent ruling of the TAR of Lazio has brought attention to a central and often underestimated issue in the construction field: the responsibility for building abuse falls on the current owner, regardless of who physically carried out the disputed work.
The case concerned a demolition order issued by the Municipality against a property built without valid authorizations, but with the particularity that the current owners were not the perpetrators of the abuse, having purchased the property subsequently.
This principle, confirmed by jurisprudence, can have serious consequences for those who decide to purchase properties without carefully checking their urban planning regularity.
But what are the concrete risks for buyers? How can we protect ourselves from these problems?
Let’s find out in detail what the court ruled and how to avoid running into similar situations.
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The context: the case of the illegal property
The case in question arises from a demolition order issued by the Municipality towards the owners of a property located in the territory of the Municipality of Fonte Nuova. According to the municipal administration, the owners would have built, without any building permit, a building consisting of two adjacent units, one intended for storage and the other for living quarters, with a total volume of approximately 161 cubic metres.
This new construction was judged illegal as it did not comply with either the original building permit issued in the 1970s, nor the subsequent amnesty in the 1980s.
The owners of the property contested the measure, claiming that the works had been carried out made by the previous ownerswell before they acquired the property in 2003. According to them, they would have no responsibility for the construction of the building, having received ownership only later through a donation.
However, the TAR clarified that this does not affect the legitimacy of the demolition order: the current ownership implies, in fact, the assumption of legal responsibility for any abuse present on the property, regardless of the fact that whoever currently holds possession of it was not the material creator of the work.
The central crux of the issue is the concept of “real responsibility” linked to construction abuses. The judge confirmed that the sanctioning regime provided for by the building regulations does not apply only to the material perpetrator of the abuse, but also to the current owner of the propertywho is required to respond to construction violations as if he were directly responsible for them. This principle has been reiterated in numerous sentences and is at the basis of the sanctioning system in construction matters: building abuse, once ascertained, passively legitimizes whoever is the owner at the time of the dispute, without distinguishing between old and new owners.
This provision entails serious practical consequences for those who purchase properties without carefully checking their urban planning regularity. Even if the buyer is completely unaware of the irregularities present, he may find himself the recipient of demolition orders and administrative sanctions, risking losing the investment and having to bear additional costs to restore building legality.
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The legal issue: the responsibility of the new owners
One of the main arguments raised by the owners concerned their involvement in the construction of the illegal work, since the property was acquired by them only after the construction of the disputed building. In their opinion, the measure should have been addressed to the previous owners, who had originally carried out the intervention.
However, the TAR’s position on this point was clear and clear: the current legislation on building abuse, governed by art. 31 of Presidential Decree n. 380/2001, does not distinguish between who physically created the work and who is simply the current owner of the property.
In other words, whoever holds ownership of the property today is passively legitimized with respect to restoration orders, even if the abuse was committed in the past by third parties. The rationale of this legislation is to guarantee the restoration of legality, concentrating the removal obligation on the current owner, regardless of his personal responsibility.
The TAR reiterated that the demolition order has a real character and follows the ownership of the propertyrather than the person who committed the abuse. This principle is applied to prevent the property, changing hands over time, from becoming a way to circumvent sanctions, putting at risk the very effectiveness of the urban planning legislation.
The ruling underlines that the legal responsibility of the owner is not subordinated to having directly caused the abuse, but derives from the simple possession of the property subject to the provision.
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Lack of motivation and landscape restriction: the rejected objections
The owners also contested the validity of the demolition order from the point of view of lack of motivationarguing that the municipal administration did not adequately explain the reasons of public interest that justified the removal of the abuse. Their reasoning was based on the long presence of the work (built in 1994), which should have made demolition superfluous in the absence of specific reasons.
In essence, the appellants believed that the simple presence of the building for over twenty years constituted a sufficient element to make the protection of the trust prevail over the need to restore urban planning legality.
The TAR, however, rejected this argument, recalling the consolidated jurisprudence on the topic. According to the judge, for works totally without a building permit, a justification illustrating the reasons of public interest for the demolition is not necessary, since these are considered intrinsic to the very nature of the measure. In other words, when it comes to abuses “sine titulo” (without any urban planning legitimacy), the restoration of legality is an objective that requires no further explanation: the existence of the abuse is in itself sufficient reason to order the demolition .
Another element of dispute raised by the appellants concerned theapplication of the landscape restrictionintroduced in 2007, i.e. after the construction of the building. The owners argued that, since the restriction did not exist at the time of construction, the more restrictive regulations foreseen for restricted areas could not have been applied. This complaint was also rejected by the TAR, which clarified that the lack of a legitimate building permit is sufficient to justify the demolition order, regardless of the existence or otherwise of subsequent constraints.
This decision confirms an important principle: the possibility of remedying a building abuse does not depend only on the absence of constraints, but still requires the existence of a valid building permit that legitimizes the work. In the absence of this, the work is considered illegal and subject to demolition, even if the restriction was placed at a later time.
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The practical implications of the sentence: attention to real estate purchases
The ruling of the TAR of Lazio n° 1868 of 2024 clearly highlights the risks associated with the purchase of properties with construction irregularities, even if these were built by the previous owners. The principle reiterated by the court, according to which the responsibility for building abuse falls on the current owner, entails significant consequences for both those who purchase a property and those who sell it.
In fact, anyone who acquires an asset with urban planning discrepancies could find themselves administratively responsible for such irregularities, having to face demolition or restoration measures to the state of the places.
This aspect makes the moment of buying and selling properties particularly delicate, since preliminary checks on urban planning and cadastral regularity become fundamental to avoid unpleasant surprises. Before concluding a purchase, it is therefore essential to request all the authorization documentation relating to the property and, if necessary, contact qualified professionals, such as architects or surveyors, to carry out an accurate check of building compliance.
The ruling also highlights another important issue: the seller’s responsibility in the case of untrue or incomplete information provided to the buyer. If the buyer demonstrates that he acted in good faith, deeming the property compliant based on what the seller declared, he may have scope to claim damages. However, this does not prevent the execution of demolition measures, which remain valid and enforceable against the new owner.
Therefore, the buyer’s good faith does not exclude or suspend the obligation to restore urban planning legality, unless the abuse is able to be remedied with a specific provision.
Finally, the sentence is a warning for all owners who own properties with building violations that have never been regularized: selling an irregular property can transfer the problem to the new owner, but does not eliminate the legal responsibilities that may emerge subsequently. In some cases, the stipulation of contracts with indemnity clauses, which exclude the seller’s liability for any abuse, may not be sufficient to protect the buyer, since the administration can still act on the property independently of the private agreements between the parties.