The new amnesty for building abuses: the 2024 Save Home Decree approved

We are still at the starting line and the road will still be long. After the approval by the Council of Ministers of the draft Legislative Decree containing “Urgent provisions regarding building and urban planning simplification” (Save Home Decree 2024) wanted by the Minister of Infrastructure and Transport Matteo Salvini, we will have to wait for publication in the Official Journal (from this moment the provisions envisaged will be immediately in force) and then the conversion into law by Parliament (aspect now increasingly marginal).

Minister Salvini anticipated in a press conference (without his usual slides) the main themes of the new Law Decree and hoped for its publication in the Official Journal of Monday 27 May 2024. From the clarifications regarding free construction (with particular reference to the panoramic windows and pergolas) up to the amnesty of building abuses which, in the event of slight discrepancies, will no longer require the much disputed “double conformity”.

Save Home Decree 2024: amendments to Presidential Decree 380/2001

In detail, the emergency measure will intervene with a new package of amendments to Presidential Decree 380/2001 (Consolidated Construction Law) which will concern:

• free building interventions (VEPA and pergotende);
• the legitimate state;
• the urbanistically relevant change of use;
• interventions carried out in the absence of a building permit, in total non-conformity or with essential variations;
• manufacturing tolerances;
• the building amnesty through conformity assessment;
• the building amnesty of partial non-conformities;
• interventions carried out in the absence or in non-compliance with the certified notification of commencement of activity;
• the fund for the demolition of illegal works present in the municipal territory.

The legitimate state and constructive tolerances

In this in-depth analysis we will deal exclusively with the new definition of “legitimate state” and the new possibilities for building amnesties that will arrive with the Save Home Decree 2024 after its publication in the Official Journal (provided that these provisions are confirmed).

The new definition of legitimate state provides that the following contribute to its determination:

• the alternative sanctions to demolition referred to in articles 33 (paragraph 2) and 34 (paragraph 2);
• the sanctions referred to in article 37, paragraphs 1, 3, 4, 5 and 6 (SCIA in amnesty);
• the alternative sanction to demolition referred to in art. 38 (but this is actually nothing new given that paragraph 2 already states that “The full payment of the fine imposed produces the same effects as the amnesty building permit referred to in article 36”;
• the technician’s declarations regarding the construction tolerances referred to in the art. 34-bis (completely revised by the new Legislative Decree.

The change regarding the art. 34-bis which will apply for interventions carried out by 24 May 2024 (or by the date of publication in the Official Journal of the Law Decree) and which parameterises the percentage of construction tolerance to the squaring of the real estate unit. In particular, failure to respect the height, separations, volume, covered surface area and any other parameter of the individual real estate units does not constitute a building violation if contained within the limits:

It is expressly provided that for the purposes of calculating the useful surface area, only the surface area approved with the building permit that enabled the implementation of the intervention is taken into account, net of any subdivisions of the property or real estate unit carried out over time .

The content of the new paragraph 2-bis which will be introduced in the art. 34-bis and for which, again for interventions carried out by 24 May 2024, constitute executive tolerances pursuant to and in compliance with the conditions referred to in paragraph 2:

• the smaller size of the building;
• the failure to implement non-structural architectural elements;
• executive irregularities of external and internal walls;
• the different location of the internal openings;
• the inconsistent execution of works falling within the notion of ordinary maintenance;
• design errors corrected on site;
• material errors in the design representation of the works.

The new amnesty for building violations

Also relevant are the changes regarding the building amnesty which will have 3 arrows in its bow:

• the art. 36 whose heading becomes “Assessment of conformity in the event of absence of title, total discrepancy or essential variations”;
• the art. 36-bis entitled “Assessment of conformity in the event of partial discrepancies”;
• the art. 37 whose heading becomes “Interventions carried out in the absence or non-compliance with the certified notification of start of activity”.

With the art. 36 remains the double compliance to obtain the building permit in amnesty which may be requested for the interventions:

• in the absence of a building permit;
• in total discrepancy or with essential variations;
• in the absence of a certified notification of start of activity alternative to the permit to build in total non-compliance with it or with essential variations;

The art. 36-bis concerns the amnesty of “partial non-compliances” with the building permit or with the SCIA or in the absence/non-compliance with the SCIA. In these cases, within the deadline set in the art. 34, paragraph 1, of the TEU and in any case until the imposition of administrative sanctions, the person responsible for the abuse or the current owner of the property can obtain the building permit and present the certified report of commencement of activity under amnesty if the intervention complies with the urban planning regulations in force at the time of submission of the application, as well as with the requirements prescribed by the building regulations in force at the time of construction.

The big news concerns the fact that in this case the possibility of “conditional amnesty” is foreseen (always excluded by administrative jurisprudence). Paragraph 2 of the new art. 36-bis, in fact, allows the One-Stop Shop for Construction to issue the amnesty permit subject to the prior implementation, within the deadline assigned by the One-Stop Shop, of the building interventions, including structural ones, necessary to ensure compliance with the sector’s technical regulations relating to the safety, hygiene, healthiness and energy efficiency requirements of the buildings and the systems installed in them, the overcoming of architectural barriers and the removal of works that cannot be remedied.

It is expressly provided that the request for amnesty is accompanied by the declaration of a qualified professional certifying the necessary compliance. For building compliance, the declaration is made with reference to the technical standards in force at the time the intervention was carried out. The time of implementation of the intervention is proven through the documentation required for the legitimate status (art. 9-bis, paragraph 1-bis, TEU).

Silence assent to the request for amnesty

In the cases referred to in art. 36-bis, the manager or person in charge of the competent municipal office must express a reasoned decision within forty-five days upon requesting an amnesty permit, after which the request is considered accepted (silent consent).

The deadline referred to in article 19, paragraph 6-bis of law 7 August 1990, n. applies to SCIAs undergoing amnesty. 241 (30 days). It is not clear whether afterwards it will be silence-non-compliance, silence-assent or silence-refusal.

In the case of properties subject to landscape restrictions, the terms are suspended until the landscape compatibility procedure is defined.

Once the aforementioned deadlines have expired, any subsequent decisions by the competent municipal office are ineffective. The deadline is interrupted if the office represents investigative needs, motivated and formulated in a timely manner within the terms themselves, and starts again from the receipt of the investigative elements. In case of ascertained lack of the requirements and conditions for the amnesty, the manager or manager of the competent municipal office applies the sanctions provided for by the TEU.

SCIA in amnesty

Changes also to the art. 37 whose heading becomes “Interventions carried out in the absence or in non-compliance with the certified report of commencement of activity” and in which paragraph 4 is repealed and paragraph 6 amended as follows:

6. Failure to certify the start of the activity does not entail the application of the sanctions provided for in Article 44. However, where the conditions are met in relation to the intervention carried out, the application of the sanctions referred to in Articles 31 remains unaffected. , 33, 34, 35 and 44 and the assessment of conformity referred to inarticle 36-bis.

We remind you that the art. 4 repealed provided:

Where the intervention carried out complies with the urban planning and building regulations in force both at the time of implementation of the intervention and at the time of submission of the application, the person responsible for the abuse or the owner of the property can obtain amnesty for the intervention by paying the sum, not exceeding 5,164 euros and not less than 516 euros, established by the person in charge of the procedure in relation to the increase in value of the property assessed by the local agency.