If the building intervention carried out by the individual condominium owner also involves common parts, the condominium’s consent is required in order to request the amnesty building permit: this is what was reiterated by the Regional Administrative Court of Lombardy, Brescia, section. II, in the sentence. 16 July 2026, n. 1006 (1).
Let’s look at the concrete case and the consolidated jurisprudential orientation.
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The subjective legitimacy to request the building permit in amnesty
In terms of law, the Brescia judges recalled that the request for amnesty can be proposed not only by the subjects referred to in the art. 11, paragraph 1, of the Consolidated Building Act (Presidential Decree 6 June 2001, n. 380), i.e. by the holders of rights that allow requesting the issuance of the building permit, but also by any other person interested in obtaining the same amnesty, and therefore by the author of the abuse and by the person who derives benefit from the abuse; if conflicts arise between these categories of subjects, the owner decides on the final arrangement of the places, considering the greater extension of his right.
The same situation is reproduced in the condominium context: the application for amnesty presented by the condominium becomes inadmissible if the assembly does not accept the consequences resulting from the abuse for the common areas.
In other words, although the request for amnesty can be presented by parties other than the owner and the person responsible for the abuse, it requires an act of consent from the owner of the dominion right who undergoes the transformation of the property. This act of consent is also necessary in the case of ownership pro undivided, as in the case of condominium areas; Opinion differently, “the administration would end up legitimizing a substantial appropriation of condominium spaces by the individual condominium owner, in the presence of a possible contrary will of the others, who could be interested in eliminating the abuse also in an administrative way and not only with private actions”(2).
The specific case
In the case analyzed by the Brescian judges, there were consolidation works on the embankment downstream from the condominium’s property, with the rebuilding of the fence located on the border line; therefore, since it is an intervention that also affects a common area, and, in particular, the common wall as a structural element, the Municipality had deemed it necessary to acquire express authorization from the condominium. The latter, however, as emerged from the minutes of the condominium meeting, was precise in rejecting the result of the works on the condominium areas, with the all-encompassing formula “In light of the vote (…) the assembly resolves not to allow the use of the condominium areas”.
The Municipality, therefore, since the ownership or, in any case, the legitimate availability of the common areas was excluded from the individual condominium owner, had correctly proceeded with the dismissal of the amnesty request, without any conceivable defects in the investigation or motivation.
The judges also specified that the qualification of the intervention (in the specific case, new construction or extraordinary maintenance) is irrelevant for the purposes of the need for express consent from the owner of the property right affected by the work itself (in this case, the condominium); furthermore, with respect to the issuance of the building permit requested by a co-owner, the other co-owners do not assume the status of third parties, but rather of direct recipients of the effects of the act, with the consequent need for their consent.
Jurisprudence
The principle reiterated by the Brescian judges does not represent anything new but a confirmation of a consolidated orientation.
For example, in the case of interventions that modify the facade of the building (also in terms of amnesty) to be considered a common good, it has been stated(3) that the condominium’s consent is required, the presence of which is a prerequisite that the Municipality must ascertain during the preliminary investigation, according to criteria of reasonableness, and is presented as influencing the legitimacy of the authorization for the construction of the works; think, for example, of the transformation of a pre-existing window into a cantilevered balcony: since this is an intervention that affects the aesthetic imprint of the building, the consent of the condominium is required(4).
Similarly, the need for the consent of the condominium assembly was affirmed for the request for permission to build an amnesty for a tent of considerable size, located inside the condominium courtyard(5).
Notes
(1) In terms, see TAR Lombardia, Brescia, section. II, sentence. 11 August 2022, n. 793.
(2) See Council of State, section. VI, sentence. 27 June 2008, n. 3282; more recently, see section VII, sentence. 13 February 2024, n. 1438.
(3) TAR Tuscany, section. III, sentence. 3 March 2022, n. 274; TAR Piedmont, section. II, sentence. 6 December 2022, n. 1079.
(4) Council of State, sec. II, sentence. 6 August 2025, n. 6951; TAR Campania, Naples, section. VI, sentence. November 16, 2020, n. 5253.
(5) TAR Veneto, section. II, sentence. November 26, 2020, n. 1132.
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