Act of enslavement and movement of the building index
Therefore, the deed of enslavement, so a fund is intended to serve the calculation of the building of another area, constitutes a negotiating case with mandatory effectsin which the building quality of a fund is placed at the service of another fund in order to increase the cubicature that can be achieved on the latter, creating a enslaved area permanent and irrevocable constraint With loss of its building potential and consequent permanent mesitation of its use by anyone who is the owner also in transfers to anyway intervened in the following period, being therefore opposable to third parties and whoever is the owner.
The movement of the building indexwhich in this way comes to be realized, does not determine any variation of the territorial area index, that is, its overall density, given that the index generated by a land in relation to the area of the area is concentrated on a certain near ground, so it is essentially forming a Lot of urban relevance that no longer coincides with the boundaries owned.
The transfer of cubicura, in the presence of the legitimizing conditions, therefore, is considered admissible, as the volume increase in favor of the cubicing transferee finds balance in reducing the transferor’s volumewithout this involving any modification of the residential density ratio, established by the building standards.
Assumptions for the operation of the sale of cubicura: contiguity of the areas concerned
The sale of cubicature is allowed in the presence of two assumptions. First of all, the areas affected by enslavement must be contigue. It is a concept of particular attention by the jurisprudence, according to which contiguity does not necessarily require the communion of one or more boundaries but an effective closeness(2).
In order to provide a useful practical reference, we remind you that one distance of more than 300 meters has already been considered an impediment to the use of the sale of cubature (3), as well as (even more so) a distance of a few kilometers (4), while a distance of about 20 meters (5) were considered irrelevant, the presence of a route with servants of Public passage between the two funds (6), of a drain (7) and a road (8), also a local (9). On another occasion, the circumstance that the two areas, although not neighboring, were however, however, was considered sufficient for enslavement. included in the same sheet of the land registrydespite the presence of roads and other lots, some of which built, between the two funds concerned (10).
Assumptions for the operation of the sale of cubicura: urban homogeneity of the areas concerned
Secondly, the transfer of cubature presupposes urban homogeneity: the funds must be characterized by same intended territorial use and building homogeneity and have identical index of original manufacture.
If this were not the case, the prejudice for the implementation of the total building programming criteria contained in urban planning tools; even more manifest prejudice where the “sale of cubature” was allowed between land with different urban destination or different building index; being, in fact, evident that if the enslavement of a land having a more advantageous manufactibility index than that of the enslaventing land, or having a different destination, the Urban planning needs who had presided over the administrative choice to differentiate the building indexes of the two funds, or their own destination, would inevitably remain dissatisfied (11).
A recent concrete case
Let’s see a recent concrete case of inadmissibility of enslavement for lack of urban homogeneity. By applying the human hermeneutic criteria, the Tar Campania, Salerno, section II, in the sent. January 29, 2025, n. 186he deemed inadmissible, for the purpose of issuing the building permit, the enslavement in the case of insistent land on a territorial area “EI-areas in natural or seminatural structure” (where silvo-pastoral, agritourism and hiking use is allowed and also the agricultural use as long as these already arranged for these purposes) and others on territorial areas indicated “zone l – cave”, or having a destination territorial different from the receiving fund with intended use “E1 – Agricultural”.
Notes
(1) See,, Former MultisCass. United sections, 9.06.2021, n. 16080; Cass. civ., Section VI, 15.9.2020, n. 19152.
(2) Tar Puglia, Lecce, section I, sent. October 26, 2018 n. 1594; Tar Campania, Naples, section II, sent. 2 October 2018, n. 5737; Salerno, Section II, sent. July 19, 2016, n. 1675; TAR Lombardy, Milan, Section II, sent. 7 November 2014, n. 2684.
Useful to clarify the concept is what the sent. May 19, 2016, n. 291 of the Tar Molise, according to which “The concept of contiguity or proximity between funds, asserted and enslaved, must be understood in a relative sense, since here it is not a matter of measuring the distances precisely, but simply of guaranteeing the rational exploitation of the building spaces, in compliance with the territorial programming rules , so that the volumetric increase does not exceed the maximum limit of the building capacity envisaged by the urban planning tool for the area in which the area to be built is located. For contiguous or close funds, therefore, they must be intended – according to a consolidated orientation of administrative jurisprudence – those located in the same urban sub -zone (see: Cons. State V, 13.8.1996 n. 918), so that even a certain as a distance Between the two funds it does not constitute an obstacle, if the Urban Planning is the same. The ratio of this interpretation of the rule is to consider, in its complexity, the urban load of the area or sub -area, to be the way that the funds among which the transfer of cubicura takes place must not necessarily be adjacent, provided that they have the same urban destination, are relatively close and the asserted fund will be inevitable (see: Cons. State V, 30.10.2003 n. 6734; ditto V, 3.3.2003 n. 1172; Tar Sardinia I, 23.2.2000 n. 171)“.
(3) Council of State, section VI, sent. April 14, 2016, n. 1515.
(4) Tar Campania, Naples, section II, sent. 2 October 2018, n. 5737.
(5) (TAR Lombardy, Milan, Section II, sent. 7 November 2014, n. 2684.
(6) (Tar Puglia, Lecce, Section I, sent. 26 October 2018 n. 1594.
(7) (Council of State, Section V, sent. 4 January 1993, n. 26, in Riv. Jur. Construction, 1993, I, 328.
(8) (Council of State, Section V, sent. March 19, 1991, n. 291, in Cons. State, 1991, I, 443.
(9) (Council of State, Section V, sent. 26 October 1987, n. 671, in Riv. Jur. Construction, 1987, I, 1018.
(10) (Tar Sicily, Catania, Section I, sent. March 26, 2015, n. 885, according to which “The concept of contiguity should not be understood in the sense of adjacency, that is, of mere physical continuity between all the cadastral particles concerned (…), but as effective and significant proximity and proximity between the asserted funds to achieve the desired cubature, according to a notion of such requirement that, in accordance with a consolidated jurisprudential orientation, looks not to the mere physical condition but legal of the funds and, therefore, to their insertion in the same territorial context, represented in the case of this areas by all areas included in the same sheet 4 of the NCEU in which the particles concerned appear, with consequent irrelevance of the only numerical data of the linear distance between the funds themselves (…). The fact is not the fact that there are roads considered and several lots between the land, some of which are built, having to look at the characteristics of the entire and wider territorial area in which the transferor area and the receiving area are inserted“.
(11) Tar Sicily, Catania, section IV, 1 October 2024, n. 3213; Council of State Section IV, sent. May 31, 2022, n. 4417.
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