The legal distances have always been one of the main reasons for arguments between neighbours, so much so that the civil code dedicates a special section to them Section VI establishing at theart. 873 that the buildings on finite fundsif they are not united or adherent, they must be kept at distance of no less than three metersleaving to the local regulations the ability to establish a greater distance, with supplementary provisions, generally dictated by the implementing regulations of the general regulatory plans which, if transgressed, grant the neighbour the ability to obtain restorationin addition to the compensation for damage suffered.
Damage assessment
The Court of Cassation *has established that a rule contained in the local urban planning instrument is an integration of the provisions set out in the civil code regarding distances between buildings if it regulates, with any criterion or method, the measurement of the space that must be observed between buildings.
If a dispute arises due to the presence of construction works carried out in breach of building regulations or municipal master plans, it is necessary to determine whether the abuse constitutes a violation of the code and of the supplementary provisions, since in the first case the party whose rights have been damaged is entitled to compensation for the damage, while in the second case it is also entitled to restoration to its original state, by removing the work constructed contra legem.
For the damage assessment the presence of regular administrative authorizations and the conformity of the works to such authorizations are completely irrelevant; in fact, the mere presence of abusive or non-compliant works cannot constitute a reason for compensation; in the same way, the presence of a work duly compliant with an authorization act does not make the owner of the same free from any violations of the provisions on distances.
To sum up:
| Violation of the distances provided for by the civil code and the supplementary regulations | ✓ restoration of the situation prior to the occurrence of the offence ✓ compensation for damage suffered |
| Violation of distances not provided for by the civil code and supplementary regulations | ✓ compensation for damage suffered |
The damage estimate
The assessment of the damage caused by the violation of the rules on legal distances requires a complex activity, aimed at identifying the real damages determined to the neighboring property. compensation can be calculated based on various criteria; however, the Court of Cassation * believes that first of all one must take into account the loss of value of the building damaged by the violation. It’s about estimate the lowest valuetaking into account the actual limitation of the full enjoyment of the land due to the reduced panoramic view, exposure to light and sun, ease of access, and other factors which have led to a commercial depreciation.
The procedure definitely more appropriate to determine such depreciation It is the one for complementary value, estimating the value of the property before and after the abuse.
Another method instead consists in the opposite of the previous one, that is, in estimate of the increase in value obtained from the property of the damaging party. This is a method used in the case where the property has been sold after the execution of the works, obtaining thanks to them a price higher than the value of the property in the ex ante situation. The damaging party would therefore have perceived a surplus which arises from the unlawful conduct and which constitutes the damage suffered by the other party.
Compensation can be estimated, in the case of the construction of small works, taking as a basis the cost of restoration of the work or by calculating the higher costs that the owner of the damaged property will have to sustain, for example, for the increased consumption of electricity and methane for lighting and heating.
