Save-Home, construction tolerance thresholds: are there possibilities of fictitious modification of surfaces to raise them?

“Extended” tolerances: application boundaries

First of all, it should be noted that the rule, even more so with this paragraph, goes to underline that the the construction tolerance check is carried out with regard to the single real estate unit and not to the entire building: this is a concept that was already clear with the first draft of art. 34 introduced in 2020 and which has been further confirmed and strengthened by the administrative jurisprudence that has dealt with specific cases(1).

THE application boundaries of “expanded” tolerances of the new paragraph 1 bis of art. 34 bis appear all in all clear:

• “extended” tolerances must refer to interventions carried out (so, concluded and tested) by May 24, 2024 and in any case they refer to “errors” or “margins” of works carried out within the scope of a building permit (as specified in paragraph 3 which remains intact). For subsequent interventions on that date the principle of paragraph 1 which sets the threshold at remains valid 2% regardless of the size of the property;
• the tolerance bands greater than 2% are directly marked by the usable surface of the real estate unit (for useful surface area it is believed that reference should be made to the uniform definitions in Annex A of the Standard Building Regulations published in the Official Journal no. 268 of 16 November 2016, in particular item 14 – “Floor area of ​​the spaces of a building measured net of the accessory surface and of walls, pillars, partitions, splays and door and window spaces” – in the absence of any more specific regional legislation);
• the surface to be referred to for determining the tolerance threshold is that of the title that has consented to the intervention, without considering any subsequent subdivision interventions;
• Tolerances are expressly also refer to distances and to the measures relating to health and hygiene requirements.

Contradictions and interpretations

The way the legislator uses the definitions in this text appears partly contradictory: on the one hand, it is correct that the tolerances refer to the single intervention, and not in general to the real estate unit or even to the first building intervention that generated the property (the original building title); on the other hand, however, it appears to contradict itself when it indicates that the surface area that determines the tolerance threshold must be taken with reference to the “title that authorised the implementation of the intervention” but without considering any subdivisions that have occurred over time.

The intention of the legislator appears clearly to be to consider only the “original” surface of the real estate unit, so as to to avoid the possibility of proceeding with fictitious subdivisions for the sole purpose of temporarily raising the tolerance thresholdand then perhaps return to the merged property later.

However, as it is written, the reference is not to the title that enabled the original construction but it seems to want to refer to the intervention (perhaps the last one?) to which the construction tolerances refer. An interpretation aligned with the ratio of the standard as well as the fact that the tolerances refer not to subsequent interventions but to the “original construction” should allow the misunderstanding to be overcome.

It is not clear why only the hypotheses of subdivision should be excluded and not more generally the interventions that may have generated a different consistency of the original unitthereby also including you mergers or transfers of surfaces between neighbouring properties: since they are not expressly mentioned as exemptions, if two units of different dimensions were adjacent to each other, it does not appear to be expressly forbidden to move the surfaces between the two units to perform a “double” tolerance check first on one unit and then on the other. Even in this case, a “corrective” interpretation seems to be theorized, such that the ultimate meaning of the provision is that of apply tolerances by looking at the “original” consistency of the building(2).

The possibility of changes after May 24, 2024 is precluded

In any case, however, the possible “evasion” that has been hypothesized is prevented by the first prerequisite for the application of the rule, that is the fact that the intervention to which the tolerance assessment refers must have been performed before 24 May 2024thereby effectively preventing the possibility of carrying out artificial schemes to circumvent the rule.

However, the fact remains that, as the law is written, only subdivisions must be excluded from the possible interventions to modify the surfaces of individual units, with the consequence that if a unit derives from the merger performed in the past of two or more other smaller units, it could be applied for calculating the tolerance a lower value than the one the property could have reached in its original and legitimate configurationfor example if from two units of surface area less than 100 m2, for which the 5% tolerance limit applies, we moved to a property of more than 100 m2, lowering the reference to 4%. Those described are borderline cases, but they could occur or at least serve to keep the mind in exercise to understand what impasses the rule can lead to.

In conclusion of this study, it can be stated that it is possible that there may be changes made to the property over time such that the tolerance threshold can be applied with reference to a surface area of ​​the property which is no longer current, but such operations must have been materially concluded by 24 May 2024so the check to be done is a “simple” evaluation of the state of the property and its evolution over time and the possibility of making changes to circumvent the tolerability thresholds appears to be precluded at present.

For example, in the presence of a property that has been the subject of split before May 24, 2024 the tolerance threshold to be applied is that referred to the size of the apartment before the subdivision was carried outwhich generally means having to apply a lower percentage than would have been applicable if the operation had been carried out on the single unit beyond the fractionation. Even in the case in which the fractionation has been operated on after May 24, 2024 the tolerance threshold will always go assessed with regard to the size of the property before the subdivision.

Notes

(1) For example, on the merits, see rulings of the TAR Lazio n°4413/2021 and TAR Piedmont n°80/2022.
(2) Let us consider the case of a building that was created as a single-family home and as a single real estate unit, approved for 200 m2, with 204 m2 created. Let us then hypothesize a subdivision, thus generating two UI of 100 and 104 m2. If we were to apply the 2% tolerances, the UI with a surface area of ​​104 m2 would be outside the benefit of the tolerance. Here, the clarification introduced by Legislative Decree 69/2024, correctly understood and net of certain literal ambiguities, allows us to avoid that subsequent subdivisions could make “not tolerable” what had arisen within the tolerance threshold.