Villa and change of intended use
The matter addressed in sentence 01579/2026, published on 27 February, concerns a two-family building without formal condominium constitution in the municipality of San Nicola La Strada. One of the co-owners presents two SCIAs to the Municipality: the first in amnesty for some modifications already carried out, the second alternative to the building permit to divide the real estate unit into two distinct apartments, with a simultaneous change of intended use from a craft workshop to a residential home, and interventions on the window openings of the façade.
The other party asks the municipal administration to exercise the inhibitory powers and force the restoration of the previous situation, complaining of alteration of the architectural decoration, interference with common parts and falsehood in the declarations made in the reports. The Municipality refuses to intervene. The TAR partially upholds the appeal. The Council of State, however, fully agrees with the Municipality.
The verification obligations of technicians
The central point of the ruling is clear: the municipal administration, in receiving and managing a SCIA, does not have the obligation to proceed with an in-depth verification of the private relationships between the co-owners, unless the condominium issues are immediately evident and indisputable. The Council of State recalls its consolidated jurisprudence on this point – in particular sentences 316/2015 and 5576/2021 – according to which the Municipality’s control over the SCIA translates into a “mere acknowledgment” when the works do not present profiles of immediate criticality with respect to the common parts, especially if similar interventions had already been carried out by the other co-owners.
The disputed works, in fact, were found to be substantially identical to those carried out years earlier by the other owner, as ascertained by the inspection by the municipal Technical Office, and in any case they had not damaged the rights of the other owners. Furthermore, the substantial homogeneity of the interventions on the two façades – in terms of typology, materials and colors of the fixtures – excluded any alteration of the architectural decoration. As can also be seen from the photographic findings attached to the expert report of the applicant for the SCIA in amnesty, the façade, after the interventions, appeared harmonious and consistent with the pre-existing appearance.
It is not up to the Municipality to resolve condominium disputes
In addition to this, the Council of State once again underlines that the use of the perimeter wall of the building by the individual condominium owner for his particular needs is legitimate as long as it does not alter the nature and destination of the property, does not prevent others from making similar use of it, and does not cause damage to the individual property of other condominium owners (articles 1102 and 1122 of the civil code).
Consequently, each individual condominium owner, without the need for consent, can make all the changes that allow a particular additional utility to be drawn from the common good, as long as it does not prevent the other condominium owners from making similar use of it. In this situation, for the Board, there is no legal obligation for the local authority to investigate the legitimacy of the SCIA applicant nor to acquire the consent of the other co-owners: to demand the opposite would mean transforming every building procedure into an investigation into condominium relations, with paralyzing effects on the transformation activity of the existing building stock and a disproportionate burden on local administrations.
The reasoning is even more valid when, as in this case, the works do not concern structural elements of the building but only the distribution of internal spaces and the resizing of some windowed surfaces: interventions which by nature and impact do not require the administration to go beyond ordinary documentary verification.
Proximity is not enough
In support of the same principle, the Council of State recalls Plenary Meeting no. 22 of 2021, which definitively established the criterion of proximity – i.e. the mere physical proximity between the appellant’s property and that which is the object of the disputed building intervention – is not in itself sufficient to demonstrate the existence of an interest in the appeal. What is needed is the identification of a concrete and specific prejudice deriving from the building initiative: it is not enough to be close, it is necessary to demonstrate what is lost or suffered in actual terms.
In the present case, no structural damage was demonstrated, the claim for compensation had already been rejected at first instance due to lack of proof, and the opponent’s expert opinion proved to be generic and apodictic in light of the photographic findings in the documents. In the absence of demonstrable prejudice, essentially, the appeal lacks the very basis for being brought.
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