The cases that are faced on a daily basis in the management of real estate assets demonstrate the opportunity, or rather the necessity, of a simplification intervention relating to regularization or “sterilization” of some minor discrepancies.
Just as an example, we often face hypothesis which:
- creation of larger surfaces compared to those absent (without the creation of new real estate units);
- divergences in shape and elevation compared to the authorized one (often the result of “corrections” or variations during construction): different location of windows and balconies, geometric differences in the shape of the building and similar;
- partial diversity location of the building compared to the sediment area absent, which can also derive from irregularities in the execution of the perimeter walls;
- discrepancy result of design/representation errors corrected during the execution phase;
- non-essential variations result of the absence, before the entry into force of the Law 10/77of a precise regulation regarding the mandatory presentation of a variant at the end of the works aimed at legitimizing the design changes that occurred during construction (changes which, in consolidated practice, were not only reported during registration, but also examined in place of use by the PA).
The question of the undeclared variants before L. 10/77
As mentioned, in the past, i.e. before the 1977 legislation, it was a consolidated practice to vary the project during the execution phasegoing to “report” the (minor) variations made to the project only at the time of registration, a hypothesis in which the Administrations contested nothing during the approval (express, after inspection and with the adoption of a formal measure) of habitability.
The question is not unique – according to the Constitutional Court 21.10.2022, n. 217, also before Law 10/77 there was an obligation to obtain a title for the variations to the approved project – which is why the introduction of a express state norm designed to “ratify” this form of legitimation would certainly be an appropriate and useful measure.
This is an approach which, moreover, already operates in some regions (this is the case of Emilia Romagna with theart. 17-bis LR 23/2004where such discrepancies before 77if not followed by a subsequent usability procedure, can be regularized with a financial penalty).
The possible expansion of tolerances
Another desirable intervention – which in fact is being talked about – concerns one revision of the regulation of tolerancesi.e. those discrepancies in which no building abuse is integrated, but there is a “physiological” one.
On the one hand, we observe, the 2% threshold scheduled today byart. 34-bis of Presidential Decree 380/2001 does not take due account of the fact that such a threshold is excessively restrictive from the point of view of the design and construction techniques in force in recent decades: in this sense, graduating the limit value also according to the time of construction could represent a reasonable and proportionate measure. On the other hand, the intervention of the legislator should be concentrated in order to “fill in” and specify The co. 2 of the art. 34-bisintroduced in 2020 but remained (except for some regional regulations) a dead letter due to its excessive generic nature.
In particular, the law provides that – provided that no constraints pursuant to the Cultural Heritage Code come into play (we will return to this topic) – “i's also constitute executive tolerancesgeometric regularities and modifications to the finishes of small buildings, as well as the different placement of systems and internal works, carried out during the works for the implementation of building permits, provided that they do not involve a violation of urban planning and building regulations and do not jeopardize the usability of the motionless”. The rather “vague” content of this definition seems evident, such as to make it difficult to apply.
This provision finds its model in regional legislation (LR Emilia Romagna 23/2004, art. 19-bis) and the regional legislation itself offers useful ideas in order to identify some hypotheses aimed at typifying some cases of “executive tolerances”. In this sense it is interesting DGR Piedmont 14.1.2022 n. 2-4519 which, among the various hypotheses, mentions for example the different execution: “of the external openings provided that the openings created overlap by at least 50% with those envisaged in the permits that legitimized the intervention and the changes in dimensions have not changed by more than 10%”, “of external walls that determine a different surface provided that the total surface of the same is unchanged and the changes to the geometry of the perimeter of the surface do not lead to a surface overlap of less than 90% compared to the approved project” as well as the hypothesis of “design errors corrected during construction”.
As well as, once again based on the model of LR Emilia Romagna 23/2004a solution could be found to the already mentioned issue of door variants L. 10/77 constituents”partial discrepancies, created in the past during the works for the execution of a qualification, which is followed, after inspection or inspection by appointed officials, with the certification of building conformity and usability (…) as well as the partial (…) which the municipal administration has expressly ascertained in the context of a construction proceeding and that it has not contested it as a building abuse or that it has not considered relevant for the usability of the property”.
Theme is that of partial discrepancies before Law 10/77 followed by “administrative reconnaissance documents” (the case of usability, precisely) which, in light of the Constitutional Court 10.22.2022, n. 217, requires state regulatory intervention, given that, unlike the legislation of Emilia-Romagna (never referred to the Council), the Venetian provision which introduced this tolerance mechanism has been declared unconstitutional.
The question of the notion of partial non-conformity and the relevance of constraints
Always from a proactive perspective, it is necessary to highlight two knots whose solution seems to be a decisive factor for real simplification.
From a first point of viewit must be observed that the majority of hypothesized solutions on the agenda – for the purposes of amnesties/tolerances – are anchored to the concept of partial discrepancy. It should be highlighted that to date the concrete definition of the notion of partial non-conformity is entrusted by the national legislator (art. 32 Presidential Decree 380/01) to regional legislation.
In fact, theart. 32 of the TUEd currently in force mostly identifies generic (if not “blank”) criteria.
Consider, purely by way of example, the criterion of cubic volumecompared to which theart. 32 of Presidential Decree 380/2001 indicates to the Regions, as a parameter, that of “significant increase in volume or floor surface to be evaluated in relation to the approved project”. And this with the paradox that while in Emilia-Romagna, in relation to the volume parameter, the partial discrepancy has a threshold limit of 20%, in Lazio the limit value is 2%. Therefore, any Save Home or systematic reform in a reasonable sense of the regulation of building sanctions must pass through revisionupstream, of the national rule relating to the notion of essential variation.
From a second point of viewalways theart. 32 of Presidential Decree 380/2001 raises another relevant question: upon the occurrence of any constraint pursuant to the Legislative Decree 42/2004 (therefore also in the case of purely areal landscape constraints, i.e. without any connection with the protection of the specific property) the possibility is excluded to qualify the irregularity as a partial non-conformity (a choice that the Legislator also makes inart. 34-bis, co. 2on the subject of executive tolerances).
It is clear that such an approach needs to be rethought, under penalty of the risk of a regulatory revision which, in fact, would end up affecting a minority of the building stock.
The current limits of conformity assessment
The last issue on which critical issues need to be highlighted is that of amnesty ex art. 36 Presidential Decree 380/2001. And this not only highlights the need, especially when it comes not to new buildings but to limited expansions, to reconsider the rigid mechanism of double compliance (giving emphasis, for example, to the supervening urban planning-building compliance), but above all to provide a clearer and more flexible discipline to the “special” authorization regimes (above all: seismic authorization and authorizations from the competent Superintendencies) which today, also due to particularly rigorous jurisprudential guidelines are often of uncertain practicability.
It is worth remembering, regarding the CD seismic sanatoriumthe existence of a split within the jurisprudence: according to the Criminal Court of Cassation, most recently sentence 2357/2023, the absence in Presidential Decree 380/2001 of an express regulation does not allow the seismic authorization in the amnesty to be considered as existing, hence the impossibility of obtaining an assessment of conformity for properties affected by violations relating to the regulation of the structures. On the other hand, there is a recent opposite reading of Council State no. 3645/2024 which allows this form of amnesty.
Just as, in terms of posthumous authorization for interventions subject to direct protection pursuant to part II of the Cultural Heritage Code, there are fluctuations both in practice (with various Superintendencies admitting a “posthumous authorization”) and in jurisprudence (TAR Lazio , Rome, n. 7811/2021 excludes this title in the amnesty). Thus, it must be remembered that according to peaceful administrative jurisprudence It is not possible during the conformity assessment make changes to the property, even minor ones, aimed at making it compliant with the relevant urban planning and building regulations. The latter approach, which – regardless of the debate relating to overcoming the double conformity rule – in its most rigid meaning effectively makes the regularization process often very difficult, if not impossible, to positively define (just remember that Council State no. 4176/2015 has even excluded the possibility of “recovering” compliance by affixing “a sunshade parapet suitable to block the view towards the neighboring property”).
Article by: Avv. Andrea Di Leo, Legal Team partner and Arch. Francesco Lupoi, SPERI partner
