How it works, how to apply, how much it costs
The issue of building amnesty is always a hot topic and not, as we often hear superficially, because there are many smart people who do not abide by the rules. Or rather, it is true that there are many illegal situations that the amnesty can remedy, and this harms citizens who have always respected the rules, but it is equally true that there is a need to settle a large number of minor administrative penalties often caused by the complexity of the Consolidated Building Act.
In any case, there are no plans to approve a Building Amnesty in 2024, but these insights serve to try to clarify a controversial issue.
In fact, the topic of building amnesty is never neutral. It seems fair to us to highlight all the elements that make it up, and while we must try to encourage those who respect the legal compliance of the works they perform on real estate, it is also good to bring order to a sector that has undergone a strong evolution over the years.
The Consolidated Building Code
For some time now, there has been a perceived need to update the Consolidated Building Act, namely Presidential Decree 380 of 2001, which, despite having been approved only a few years ago, still consists of outdated regulations.
In recent years, the construction sector has undergone a strong drive towards innovation, which today is best summarized by the concept of building redevelopment. Unfortunately, however, the regulatory system has not followed the same evolution, and today industry players are faced with severe delays by government in controlling construction and, especially, renovation activities.
In fact, the problem is not only felt for new construction, but more acutely affects the older building stock. The current regulations are very detailed in a way that is sometimes not reflected in reality, where not infrequently, those who find themselves in the position of inheriting real estate find themselves caught up in legal and bureaucratic quibbles that are difficult to untangle.
The legitimate state
The lawful state of a property is the ideal situation whereby the documents filed with the land registry and all those concerning the history of the property correspond to the state of affairs. Unfortunately, this does not occur very often, especially for properties that have not been bought or sold for a long time.
In fact, the circumstances by which one becomes aware of the mismatch between the state of affairs and the official documentation are buying and selling, an inspection, a report, or a new building permit for changes.
The documents filed and approved may relate to a renovation project that perhaps was not fully complied with in its implementation and thus leaves this problematic “legacy.”
The property owner is responsible to the Law for building violations and may even go so far as to annul certain legal acts under Article 46 of Presidential Decree 380/2001.
These kinds in administrative irregularities are never statute-barred, so they can even involve renovations done decades ago that no one has any memory of anymore. It is important to be aware of this because these situations need to be remedied before, in particularly serious cases, a demolition order is issued.
Of course, there are different levels of severity, ranging from minor deviations from the regulations to actual violations, each with its own penalties.
CILA and SCIA: building permits
In order to carry out construction or renovation work of a certain size, documents must be submitted to the municipality as a request for authorization to proceed.
CILA is the Certified Notice of Commencement of Works, while SCILA is the Certified Notice of Commencement of Activities. Both of these authorizations can only be submitted if the building complies with regulations and therefore its legal status must already have been verified.
This means that without a regular starting point, no changes can be made. Initiating work on a property with previous violations by falsely declaring its regularity constitutes both an administrative offense and a criminal offense. Case law has made it clear that CILAs submitted for nonconforming properties are considered “inadmissible,” with all the legal and procedural consequences that follow.
Construction tolerances
At this point we can focus on what may actually be the differences between the actual state of the property and that indicated by the documentation. The difference between the two situations can range from minimal, as in the case of slight differences, to serious deviations.
It is necessary to understand whether these deviations, even if minimal, are in conflict with urban planning, building, or technical regulations.
In the case of slight variations, Article 34-bis of the Consolidated Building Code states that if these fall within the 2 percent margin they can be considered “construction tolerances” not considered violations. In particular, this tolerance refers to heights, volumes, distances, or surface areas, which are therefore not subject to penalties.
These tolerances must be certified by a qualified technician and do not apply to properties subject to cultural heritage or landscape restrictions.
Far more serious, on the other hand, are considered variations in case they concern aspects related to safety, earthquake regulations, cultural and landscape constraints, and general territorial regulations. No tolerance is applied in these cases.
Building Abuse
Building violations fall into two main categories: documentary violations and substantive violations.
In the first case, work has been carried out in compliance with regulations and urban planning laws but without the necessary authorizations, while in the second case, the work has not complied with the law.
In the case of substantive violations, the penalty involves the demolition of the illegal work, as established by Article 31 of the Consolidated Building Act.
There is also another type of violation defined as an “essential variation.” This is still work carried out without permission because it does not comply with the approved project, but it is recognized as a minor offense punishable by a fine.
This category includes increases in volume and surface area, changes in intended use, or minor violations of anti-seismic regulations.
However, these are general definitions that are broken down in great detail depending on the extent of the changes, within the framework of a rather complex regulatory system.
Sanctions
Construction abuse is a crime that can be administrative as well as criminal, and as such is punished with penalties. Without going into too much detail about specific administrative penalties, we can consider some of the main types of violations, each of which carries corresponding penalties.
The main violations fall into the categories of works carried out without permission or carried out in a manner different from the approved project. In other cases, partial changes may have been made to the approved project, or works may have been carried out with a permit that was subsequently revoked.
Each of these abuses is regulated by one or more articles of the Consolidated Law, indicatively from Articles 31 to 38, which are structured in such a way as to ensure compliance with the building and urban planning regulations in force.
In addition, the possibility of resorting to special amnesty conditions that allowed the demolition of clearly abusive works to be avoided has been restricted, with a view to making the entire regulatory and sanctioning system more consistent.
Other case histories
There are a great number of variables that govern the different provisions on building amnesty, and this is not a legal text that can be exhaustive on the subject. However, the Consolidation Act provides for specific penalties in all particular cases where, for example, the application for a concession was submitted late, but they vary depending on the type of intervention was carried out and whether all or only partial adaptations to the regulations were complied with.
There are amnesty concessions that must meet “double compliance” or alternative penalties at the discretion of individual local governments that set specific penalty rates for each specific infraction.
There are even cases where it is not possible to apply the rule of demolition for illegally executed works, either because of the impossibility of submitting the correct documentation or the impossibility of restoring the original state of the property.
However, the criminal and civil responsibilities of the property owner who must take charge of regularization remain.
Finally, a special case governs those construction offenses involving landscape alteration that provides incentives for voluntary action to restore the previous situation or demolition. In essence, if the owner fixes the abuse on his own initiative, the law grants him extenuating circumstances that are not granted in the case of coercive action.
As we have understood, it is not easy to navigate the vast array of regulations governing all those infringements that fall under the heading of “building violations,” but which are sometimes minor irregularities or due to a lack of documentation, delays in completing applications, or slight differences between the design and the actual construction.
Teknoprogetti Engineering is a civil engineering company that can also help anyone who needs to remedy complex building situations to regularize their situation, both from a documentary and operational point of view, with highly specialized project management.
