Source: lavoripubblici.it
Unjustified non-compliance with the demolition order of the illegal construction involves the automatic acquisition of the property to the municipal heritage in favor of which the restitution must be ordered, and the acquisition does not constitute a legal impediment to demolition by the owner in the absence of a municipal resolution declaring the existence of public interest in the maintenance of the work.
This was reiterated by the Supreme Court of Cassation in its judgment no. 1564 of 5 October 2017, with which it rejected the appeal filed against a previous decision of the Court of Appeal which had confirmed the acquisition of the area affected by the building abuses to the Municipality’s assets, pursuant to art. 31 paragraph 3 of Presidential Decree no. 308/2001 (the so-called Consolidated Building Act)
We remind you that art. 31 (Interventions carried out in the absence of a building permit, in total discrepancy or with essential variations), paragraph 3 of the Consolidated Building Act states:
If the person responsible for the abuse does not demolish and restore the state of the places within ninety days of the injunction, the property and the area of the site, as well as that necessary, according to the urban planning regulations in force, for the construction of works similar to the illegal ones are acquired by right free of charge to the property of the municipality. The area acquired may not exceed ten times the total useful area illegally built.
On this point, the Court of Appeal argued that the applicant, in the face of the demolition order of the illegal works, had failed to comply within 90 days, having proceeded with the demolition only later, following a second demolition order. The consequence of non-compliance with the first municipal injunction to demolish the illegal building meant that it had to be returned to the municipality that had become the owner following the useless expiry of the legal term provided for in Article 31 cited above, regardless of the fact that the applicant had submitted two applications for building permits in amnesty, applications that were then rejected.
The decision of the Supreme Court
Confirming the thesis of the appeal judges, the ermines recalled the discipline for the demolition of works carried out in the absence of a building permit or in total discrepancy or with essential variations, provided for by art. 31 of Presidential Decree no. 380/2001. Especially:
- the municipal authority shall order the owner and the person responsible for the abuse to remove or demolish the intervention, with the granting of a term of ninety days to comply;
- after this term has elapsed in vain “the property and the area of land are acquired, by right and free of charge, to the heritage of the Municipality”;
- the ascertainment of non-compliance with the injunction to demolish constitutes the title for entry into possession and for registration in the land registers;
- The acquired work is demolished by a special order, unless a council resolution “declares the existence of prevailing public interests and provided that the work does not conflict with significant urban and environmental interests”.
The same art. 31, moreover, establishes that the judge, with the sentence of conviction for the crime referred to in art. 44 of Presidential Decree no. 380/2001, orders the demolition of illegal works, if it has not been carried out otherwise.
According to the Supreme Court, the ablatory effect occurs ope legis at the useless expiry of the term set to comply with the demolition order, while the notification of the formal ascertainment of non-compliance is configured only as a necessary title for the entry into possession and for the transcription in the land registers which does not constitute a technical-legal impediment to the possibility of executing the demolition order, as the transfer of the property in the The availability of the local authority is exclusively preordained to its easier demolition – the economic burden of which must be placed in any case on those responsible for the building abuse – and not instead to increase the assets of the local authority with works that contrast with the urban planning of the territory
Administrative jurisprudence has also recently reiterated the principle according to which “the free acquisition of illegal works to the municipal heritage, provided for by art. 7 paragraph 3, of Law no. 47 of 28 February 1985 (now art. 31 paragraph 3, Presidential Decree no. 380 of 2001) is a due act without any discretionary content, and is subject only to the ascertainment of non-compliance and the expiry of the legal term (ninety days) set for the demolition and restoration of the state of the places”.
The administrative judges reiterated that, after having ascertained the non-compliance with the order of demolition and restoration of the state of the places, the measure of free acquisition of the illegal works and the site area is consequential and, therefore, cannot be independently challenged in the absence of timely appeal of the order itself, hence the conclusion that “The appeal against the act of acquisition of the illegal works and the area of the Municipality to the assets of the Municipality is inadmissible site, pursuant to Article 7, paragraph 3, of Law No. 47 of 28 February 1985 (now Article 31, paragraph 3, Presidential Decree No. 380 of 2001), in the event of failure to challenge the prerequisite act, consisting of the demolition order and restoration of the state of the places that remained uncomplied with”.
Therefore, the autonomy of the acquisition measure to the municipal heritage and the automatic nature of the acquisition upon ascertained expiry of the term for demolition, imply, as a logical consequence, that this cannot be independently challenged in the absence of an appeal against the demolition order itself, as held by administrative jurisprudence for the principle of consequentiality to non-compliance with the demolition order.
In the case at hand, the Court, having ascertained the non-compliance with the demolition order within the legal deadline, noted that the two applications for building permits in amnesty had been rejected and that the applicant had not challenged, administratively, either the demolition order, or the rejection/silent refusal, correctly ordered the acquisition of the property and the area of land to the Municipality’s heritage as a result of the ascertained non-compliance with the order of demolition, not challenged in its legitimizing conditions before the administrative authority, and the Court of Appeal correctly confirmed the aforementioned ruling.
