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Illegal construction in Italy (abuso edilizio). What are the risks?
Do you own a property that you suspect was completely or partially built without planning permission? Before buying the property, did you conduct planning searches in the land registry and municipal planning records to check that the whole property (including any additions and outbuildings) has all the relevant building consents? Do you aim to build a new house and want to make sure you don't fall foul of illegal construction issues?
If your answer to any of these questions is, "yes", you are strongly advised to seek independent legal advice to avoid the risk of prosecution. In 2017, Italy's national statistic institute warned of a decisive rise in the level of illegality in construction, involving nearly 20 buildings in every 100. That number rose to 60 in every 100 in some regions in the southern regions of the country.
What is illegal construction?
Illegal construction, "edilizia abusiva" in Italian, is a crime. Whenever you build either without obtaining the relevant administrative authorizations and consents, or you carry out building work which is not compliant – totally or partially – with the permission that was obtained, you are breaking the law. This will have a knock-on effect if or when you buy, or later want to sell, a property.
Building work is also considered illegal if the notification of commencement of work notice is missing (denuncia di inizio attività, DIA). This is a formal notification by the owner of the property to the municipality regarding the intention to make a change to the internal layout of a building.
Illegal construction falls in to several categories:
construction of an entire building without any building permission, some times on land designated as a non-building area;
extension of an existing building, but without any building permission;
works carried out in a different manner from the permit issued;
change of intended use of the property without permission, i.e. from business to residential use;
internal works carried out to the property without the necessary DIA notification.
Who can be held accountable for illegal construction work?
Those who risk being prosecuted for planning violations are:
the holder named on the building permit if work is non-compliant with the issued permit;
the person who commissioned the works, who may not necessarily be property owner;
the builder or person who carried out illegal work;
the project manager.
It should also be mentioned that if it can be established that the new owner either commissioned or instigated the vendor to carry out certain illegal work prior to purchasing the property. For example, if a potential buyer tells the vendor that unless certain work is performed, the potential buyer will not purchase the property, the new owner as well as the previous owner can be held liable for the illegal work.
What risks are entailed with illegal construction?
The first possible consequence of commissioning illegal construction is the imposition of an administrative sanction that varies according to the type of abuse carried out. Possible administrative sanctions are:
a demolition order whereby the illegal building work will have to be removed and the property will have to be restored to its original state;
if the municipality does not order demolition, it may sequester the property and the owner will be given a fine, which will equate to the value of the illegal work or be based on the estimated increase in market value.
a fine (equal to twice the increase in the estimated market value of the property, derived from the implementation of interventions and in any case not less than 516 Euro) in case of DIA notification is missing or if the building work is different from what is declared within DIA.
It should be noted that often an application for retrospective building permission may be filed provided that the building work complies with planning and building regulations in force at the time the work was carried out and at the date of application for retrospective permission.
The criminal consequences of illegal building construction
Anyone who carries out illegal work, in addition to the application of administrative sanctions and the demolition of the building, also risks criminal penalties. Illegal building work is considered as a criminal act in Italy and is punishable by arrest, potentially a custodial sentence and a hefty fine.
The penalties vary, depending on the type of crime committed (and without prejudice to administrative sanctions). More specifically:
in the event of non-compliance with building regulations, town-planning laws and building permits, the fine is exclusively pecuniary (i.e. up to 10,329 Euro);
in the case of building work being totally different from the building permit or in absence of a permit or in case of continuing the work, even if there is a suspension order, you could face a custodial sentence of up to two years and a fine ranging from 5,164 to 51,645.00 Euro;
in the event of illegal land parcelling for building purposes, the penalty could be a custodial sentence of up to two years and a fine of between 15,493 and 51,64.00 Euro; the same penalty is also applicable in cases where illegal building work has been carried out in areas with historical, artistic, archaeological, landscape and/or environmental restrictions.
Should you need further information concerning illegal building, feel free to contact De Tullio Law Firm at the following email address: info@detulliolawfirm.com.
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