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 amnesty can fix, and this harms citizens who have always obeyed the rules, but it is also true that there is a need to fix a large amount of minor administrative penalties often caused by the complexity of the Consolidated Building Code.
In any case, a Building Condon is not expected to be approved in 2024, but these insights serve to try to shed light on 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
There has been a need for a long time now to update the so-called Consolidated Building Code, i.e., Presidential Decree 380 of 2001, which, despite having been approved a few years ago, still consists of often outdated antecedent regulations.
The construction industry in recent years has undergone a strong push for innovation, which today finds its synthesis mainly in 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 good to know this because these are situations that need to be remedied, before reaching, in particularly serious cases, the demolition order.
Of course, there are different levels of severity, distinguished between minor deviations from regulations to actual violations, each with its own relative penalties.
CILA and SCIA: building permits
In order to carry out work, construction or renovation of a certain magnitude, documents are required to be submitted to the municipality as a request for permission to proceed.
The CILA is the Notification of Commencement of Work Ascertained, while the SCILA is the Certified Declaration of Commencement of Activity. Both of these permits can be submitted only in the case of building compliance, and then the lawful status must have already been ascertained.
This means that without a regular starting situation, 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 distance between the two situations can be as small as in the case of slight differences to situations of severe deviations.
It needs to be understood whether these deviations, even if minimal, are contrary to 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 area, which are therefore not the subject of penalties.
These tolerances must be certified by a qualified technician and do not refer 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
Construction abuses fall into two main categories: documentary abuses and substantive abuses.
In the first case, works were carried out in compliance with regulations and urban planning but without proper permits, while in the second case the works did not comply with the laws.
In the case of substantial abuse, the penalty involves the demolition of the unauthorized work, as stipulated in Article 31 of the Unified Building Code.
Then there is another type of abuse referred to as “essential variation.” This is still a work done without a permit because it is not in accordance with the approved plan, but it is recognized as a misdemeanor sanctioned by a fine.
This category includes increases in volume and area, changes in use, or minor violations of earthquake-resistant regulations.
However, these are general definitions that are declined in great detail depending on the extent of the changes, within the framework of a rather complex set of regulations.
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 punitive measures, a few main types of violations can be considered, each of which carries corresponding penalties.
The main of infractions fall into the categories of works carried out without a permit or carried out differently from the approved design. In other cases, partial changes may have been made from what was approved or work done with a permit that was later revoked.
Each of these abuses is regulated by one or more articles of the Consolidated Act, indicatively from Article 31 to 38, which are structured to ensure compliance with current building and zoning regulations.
In addition, the possibility of resorting to special amnesty conditions that made it possible to avoid the demolition of manifestly illegal works was restricted, in the logic of giving greater coherence to the entire regulatory and sanctioning system.
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 come to understand, it is not easy to untangle the vast amount of regulations governing all those infractions that fall under the chapter of “building abuses,” but which are sometimes minor irregularities either due to lack of documents, delays in completing applications, or slight differences between design and implementation.
Teknoprogetti Engineering is a civil engineering company that is also able to help all those who need to rectify complex building situations to regularize their situation, both from a documental and operational point of view with highly specialized construction management.
