In the field of construction and urban planning, compliance with current regulations represents an issue of primary importance, especially when it comes to protecting the territory from abusive interventions.
The recent sentence no. 2074/2024 of the Regional Administrative Court (TAR) of Campania, Detached Section of Salerno, reiterated the need to respect authorizations and building permits, even in situations where the possession and ownership of properties are not entirely clear.
The specific case concerns a property built without the required qualifications, for which the Municipality issued a demolition order, which was then contested by the owner of the property.
What are the implications of such a decision for owners or possessors of suspicious or undocumented buildings? And how is the legitimacy of a property established in these circumstances?
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The disputed facts: illegal constructions without permission and demolition order
The case analyzed by the Campania TAR revolves around a series of buildings built without the necessary permits on land located in a small municipality in the region.
According to the documentation issued by the Municipality, the illegal works consisted of residential structures built with concrete blocks and covered by light roofs, concrete and stone walls of different heights to delimit the boundaries and contain the land, in addition to the paving and concreting of large portions of the area, with a change of intended use from agricultural land to a residential area.
To verify the legitimacy of the works, the Municipality launched a documentary investigation requesting the owner of the land to send all the urban planning documentation. Subsequently, it carried out a joint inspection with the local Carabinieri Command. This inspection led to the drafting of a detailed report which highlighted the presence of constructions without authorization and in violation of current building regulations, in particular Presidential Decree 380/2001 (Consolidated Building Act) and local implementation regulations, including those relating to seismic constraints and waste management.
Following these checks, the Municipality issued a demolition orderordering the owner of the properties and the owner of the land to restore the original state of the places.
The decision was justified by the violation of urban planning regulations and the failure to present a valid building permit certifying the conformity of the works.
The owner of the property, however, decided to oppose the ordinance, challenging it before the TAR and contesting the legitimacy of the provision. According to the appellant, the works would have been carried out before the introduction of the current urban planning regulations and therefore would not require building permits, in addition to believing that the ordinance presented preliminary investigation deficiencies and a generic motivation.
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The appellant’s defense: works prior to 1967 and adverse possession
In his defense, the owner of the properties put forward various arguments to demonstrate the illegitimacy of the municipal demolition order. The main line of defense was based on the assertion that the disputed works had been completed before 1967the year in which the so-called “bridge law” came into force (Law no. 761/1967), which extended the requirement for a building permit also to buildings located outside the urban perimeter.
According to the appellant, since these were works dating back to a previous era, a building permit would not have been necessary for their construction.
A further argument of the defense concerned the ownership of the properties. The appellant claimed that he had acquired possession of the land and structures through adverse possessiona method that allows you to obtain ownership of an asset following continuous and peaceful possession for a specific period.
According to him, this justified his right to maintain the existing structures without being subject to the demolition order.
In addition, the appellant highlighted, in the appeal, an alleged lack of investigation on the part of the Municipality, arguing that the ordinance did not precisely specify the sanctioned works, their consistency and exact location, and that there was a lack of a clear distinction between the various works contested.
Finally, the defense underlined the absence of any official document certifying the illegal nature of the works and contested the responsibility attributed to the owner of the land, as she was not directly involved in the execution of the constructions. According to the appellant, the Municipality should have taken into account the distinction between those who have physical possession of the properties and those who are the formal owners, exempting the latter from any charges.
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TAR decision: confirmation of the demolition order and burden of proof
The Campania TAR rejected the appeal, confirming the validity of the demolition order issued by the Municipality. The decision was based on a series of documentary and technical checks, including the findings of the official technical consultancy, which highlighted the unfoundedness of the appellant’s arguments.
According to the court, the contested works were without qualifications and, contrary to what the defense claimed, they had been created more recently than 1967.
A key aspect of the ruling concerns the burden of proof. The TAR has in fact established that it is up to the possessor or owner to prove with certain documents the date of creation of the works in the event of a dispute for building abuse.
In this specific case, the appellant did not provide sufficient evidence to demonstrate that the constructions were prior to 1967.
Despite declarations and contracts stating that the properties were pre-existing, the cadastral examination and the analysis of aerial surveys did not provide elements to support this statement. On the contrary, the available data indicated a significant change to the site and its structures only starting from the 1990s, well after the entry into force of the current urban planning regulations.
Furthermore, the TAR clarified that, pursuant to Presidential Decree 380/2001, even those who only have the material availability of the property, like the appellant, can be the recipient of a demolition order. In fact, based on consolidated jurisprudence, the order can be issued not only against those who physically carried out the works, but also against those who have access to it and are therefore able to restore the state of the places.
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