The need for the explicit indication of the regularity of the previous building securities
As highlighted by TAR Lombardy, Milan, Section II, in the sent. 22 July 2025, n. 2749the reported provision allows you to give exclusive relevance to the last title(2) concerning an intervention that affected the property in its entirety, thus preventing the administration from contesting, after its release, previous abuses not found in that location.
The rule, however, subordinates this favorable effect to the condition that the administration, when issuing the last title, has verified the legitimacy of the previous securities. It follows that, To demonstrate the legitimate statethe interested party may yes just produce the last building permit, but it must be a title that (in addition to concerning an intervention that interests the property in its entirety) account for the assessment carried out by the Administration about the existence and regularity of the previous building securitieswhich legitimize the state of fact declared in it.
The jurisprudence clarified that The certificate of the Administration about the regularity of previous securities must be explicitand that, in the absence of this explicit attestation, the representation of the state of fact carried out by the designer is not in itself sufficient for the purposes that interest here, since the fact that a non -legitimate work is represented in building practices cannot involve its posthumous regularization (3).
Non -compulsory or non -available building permit
Art. 9 bis, paragraph 1-bis identifies two hypotheses of closing the system, characterized by the fact that The qualifying title:
- lacksbecause the property dates back to a historical period in which it was not mandatory to acquire the building qualification (e.g.: Ante 1942 or ante 1967), it being understood that this circumstance must be rigorously tried by the interested party(4), not being sufficient for the purpose nor the third party declarations (for example, the neighboring) nor of the seller (5);
- it is not availablebut there are proof principles about its existence.
As highlighted by Tar Lazio, Rome, section II-bis, in the sent. April 24, 2025, n. 8031in both cases, The legitimate state can be demonstrated in an circumstantial waythrough the First system cadastral information and Other probative documentssuch as photographic filming, cartographic extracts, archival or other act, public (6) or private documents, of which the origin is demonstrated, integrated with any subsequent titles that have enabled partial interventions.
In the specific case faced by the Roman judges, the private individual had provided one planimetry found in the notarial deed of sale of 1958 which traced the state of the property to that date. This factual situation entails, for the municipal technical office, the burden of proving that the building permit was necessary on that date with reference to this property and the works in question, since there is a trial principle of the maximum date of realization of the works themselves.
Notes
(1) “The legitimate state of the property or real estate unit is that established by the qualification that has provided for its construction or that has legitimized it or from that, issued or absent, which regulated the last building intervention that affected the entire property or the entire real estate unit, provided that the competent administration, when issuing the same, has verified the legitimacy of the previous securities, integrated with any subsequent qualifications. who have enabled partial interventions. The securities referred to in the securities issued or trained in application of the provisions of articles 34-ter, 36, 36-bis and 38 are included in the securities referred to in the first period, upon payment of the related sanctions or oblations. The determination of the legitimate state of the property or the real estate unit contribute, also contribute to the payment of the sanctions provided for in articles 33, 34, 37, paragraphs 1, 3, 5 and 6, and 38, and the declaration referred to in article 34-bis. For the properties made in an era in which it was not mandatory to acquire the building qualification, the legitimate state is that deduced from the cadastral information of the first system, or from other probative documents, such as photographic shots, cartographic extracts, archival documents, or other act, public or private, of which the origin is demonstrated, and from the qualification that regulated the last building intervention that has affected the entire property or unit. real estate, integrated with any subsequent titles that have enabled partial interventions. The provisions referred to in the fourth period also apply in cases in which there is a test principle of the qualification of which, however, the copy or the extremes are not available.“.
(2) Tar Campania, Salerno, section II, sent. November 28, 2024, n. 2326: “The legitimate state of the property must be concerned by keeping in debt scrutiny the last building title that has concerned the real estate unit in its entirety.“
(3) See Tar Lombardia, Milan, section IV, sent. January 25, 2025, n. 227.
(4) As mentioned by the Tar Sicily, Catania, section V, in the sent. July 16, 2025, n. 2279, “The administrative jurisprudence is granitic in affirming that “the burden of proof of the proof of the construction of the construction work is charged exclusively to the private individual in order to be able to exclude the need for the issue of the building permit. This burden currently descends from articles 63, paragraph 1, and 64, paragraph 1, CPA under which it is up to the applicant the burden of the test in order to circumstances that are still in his availability. that of procedural nature, applies to the relations between the interested party and the Administration, which in general terms, in the presence of an artifact not assisted by an qualifying title that legitimately, has only the power duty to sanction it in accordance with the law “(see Cons. State, Section II, 1/02/2024, n. 1016; Cons. State, Section VI, sentences 2/07/2020, n. 4267, 7/01/2020, n. 106, 18/10/2019, n. This criterion of allocation derives “from the application to the specific matter of the principle of proximity of the test since only the private individual can provide, as it ordinarily provides, irrefutable acts, documents or other evidentiary elements that are able to root the reasonable certainty of the era of realization of the artifact, while the administration cannot usually materially ascertain what the situation was within its entire territory” (Council of State, Sec. II, 26/01/2024, n. 858)“.
(5) As mentioned by the Tar Sicily, Catania, section V, in the sent. July 16, 2025, n. 2279, “For consolidated jurisprudential orientation “cannot be attributed evidentiary value to the declaration made by the assignment in the public act in relation to the regularity of the building since the mainal invhanced pursuant to art. 2700 cc does not extend to the intrinsic content of this statement, which can also be not true” (Cass. Civ., No. 20214/2019; Tar Sicily, Catania, 15/04/2024, n.1411 Tar Sicily, Palermo, Section II, 17/06/2021, n.
2.5.3. The declarations of the neighboring subjects (…) would have been equally without significant (in that, in the absence of the building permit, the proof of the front of the construction with respect to the entry into force of the L. 6 August 1967, n. 765 against the subject who intends to keep it “must be based on certain and univocal documentation, not being able to consider such the replacement declarations of a notoriety act or the simple declarations made by third parties” (see Council of State, Section II, sentences 03/02/2025, n. 834, 26/01/2024, n. 858 and 19/11/2020, n. 7198; VI, sentenze 12/04/2023, n. 3676, 3/01/2022 n. 4, 18/05/2021, n. 3853 e 2/01/2020, n. 12; sez. VII, sentenze 18/04/2023 n. 3900 e 30/03/2023 n. 3304; TAR Sicilia, Catania, sez. I, 25/01/2018, n. 204; Consiglio di Stato, Sez. V, 20/08/2013, n.“.
(6) For example, the Administrative Justice Council for the Sicilian Region, in the Sent. June 6, 2025, n. 446, said that “The 1960 license appears sufficient for the “demolition and reconstruction” of a property built after 1942 in the inhabited center of (…), whose original title appears to be unavailable.”
