Italy has the world’s richest cultural heritage. It is therefore quite common to hear about restricted properties. In fact, if you own an ancient building -and this is the case for many Religious Congregations in Italy- it is highly probable that your property has some restrictions.

In this article, we will delve into the specific characteristics of restricted properties to provide you with the necessary tools to understand their implications.

What does it mean for a property to be restricted?

A restricted property is one that, due to its historical, artistic, architectural, or landscape value, is protected by law. This means that any intervention on the property (restorations, renovations, demolitions, sales) must be authorized by the competent authorities and comply with specific regulations.

How are restrictions on properties classified?

There are different types of restrictions, each with specific characteristics and levels of protection:

• Direct or explicit restriction: this applies to individual properties that present a particular historical or artistic interest. If a building is subject to a restriction under Article 10 of Legislative Decree 42/2004 (Code of Cultural and Landscape Heritage), it means that it has been recognized as a property of particular historical or artistic value. This entails both the possibility of benefiting from tax breaks and the obligation to comply with specific rules for any maintenance or renovation work. Before starting any work, it is essential to verify the precise prescriptions contained in the restriction decree.
• Indirect restriction: unlike the direct one, this is not based on the direct recognition of the value or relevance of a particular property. It aims to preserve the urban and landscape context, avoiding interventions that could jeopardize the protection of other properties of cultural interest located in the immediate vicinity. This restriction also imposes some limitations with the objective of preventing and avoiding behaviour of the owner or tenant of the property that could damage, even indirectly, another nearby property of significant value.

Restrictions can be imposed by various Authorities:

• Municipal or local restriction: the individual municipality decides the restriction. It primarily concerns buildings and sites of local value (normally historic centres, so-called nuclei of ancient formation, within which there are properties of value).
• Regional restriction: regional authorities can decide to restrict certain buildings or areas if they recognize that they have cultural or historical significance for the Region. These restrictions aim to protect and preserve the region’s cultural and historical heritage and contribute to the valorisation of the region’s history, art, and landscape. Regional restrictions can apply to a wide range of assets, including:

1. Historic buildings and/or of architectural value: castles, palaces, churches, villas and other structures of historical and artistic interest.
2. Archaeological areas: concerns sites of regional importance that may contain remains of ancient civilizations or of particular historical relevance. 
3. Natural and landscape areas: parks, gardens, or natural areas of ecological or landscape relevance. 
4. Works of art: paintings, sculptures, mosaics, and artistic artifacts present in buildings or public places.

• Explicit or State restriction: the Italian State directly applies the restriction. This concerns properties of particular national interest. Each individual property is restricted by a specific Ministerial Decree.

Imposition of Restrictions

• Automatic or statutory restriction: this type of restriction, pursuant to Article 142 of Legislative Decree 42/2004, is automatically imposed by law without the need for any formal act or administrative decision. In other words, it is directly imposed by the law itself, without requiring further acts or measures by the competent authorities. This restriction is established to preserve or regulate specific aspects or goods, such as cultural heritage, the environment, public safety, or health, and applies to all involved parties without exception.
• Restriction imposed by a competent authority: This is a restriction that is imposed on a specific property through an administrative act issued by a competent authority (usually a Superintendent). It is more specific and detailed compared to the statutory restriction and is imposed following a case-by-case assessment of the property’s characteristics, at the request of the owner or ex officio by the competent authority. This refers to the legal procedures for verification and declaration of cultural interest outlined in articles 12 and 13 of Legislative Decree 42/2004, which are used to verify and declare whether something is of cultural interest.

Why do restrictions exist?

The primary purpose of imposing restrictions on buildings is to safeguard Italy’s cultural heritage. This measure allows for the preservation of Italy’s historical and artistic legacy, promoting their knowledge and appreciation. Moreover, the restriction aims to protect the environmental and landscape context, avoiding urban interventions that could alter the existing balance.

The regulations governing the protection of restricted properties are primarily contained in the Code of Cultural and Landscape Heritage (Legislative Decree 42/2004), which has incorporated the UNESCO Paris Convention of 16 November 1972 on the protection of the world’s cultural and natural heritage.

The Code establishes the general rules for the protection of cultural and landscape heritage, defining the procedures for imposing restrictions, the modalities for interventions on restricted properties, and the sanctions for those who violate the protective provisions.

How and where to verify the existence of a restriction

1. Cultural Heritage Restriction:

• The restriction should be mentioned in the property’s deed, as per Articles 59 and 60 of Legislative Decree 42/2004. This is because the Ministry has the right of first refusal in the sale of cultural heritage properties. Therefore, if the property in question has recently been transferred, the deed can already provide the necessary information.
• You can use the national portal for identifying restricted properties developed by the Ministry, called “Vincoli in Rete” (vincoliinrete.beniculturali.it). The portal allows you to search for properties by using a map or by entering various parameters, such as cadastral data or the address. However, the data contained in this archive may not always be up to date, as restrictions can be imposed at any time.
• To resolve any doubt, the best thing is to request information about the existence of a restriction directly from the competent regional Superintendence, in order to have an official response that can be used for the permitted uses. Each office has its own procedures and forms for requesting certificates, so it is advisable to contact the relevant Superintendence or consult their website.
• Once you have discovered the existence of a restriction, it is essential to obtain a copy of the relevant decree to examine it in detail. Although not always provided, this decree is usually sent together with the declaration of restriction.

2. Landscape Heritage Restriction:

As for the restrictions under Part III of Legislative Decree 42/2004, which concerns landscape heritage, the procedure is slightly different (do not think that landscape restrictions only apply to undeveloped areas as there are numerous restrictions whose perimeters also cross densely built-up areas):

• For verification, you can refer to the Territorial Environmental and Landscape Information System – SITAP (sitap.beniculturali.it), which provides a map viewer (webgis) where you can directly check the presence of restriction perimeters. However, remember that only publications in the Official Gazette, or the presence of regional landscape plans deposited with the regions, officially prove the existence of the restrictions. Therefore, these online tools should only be used for orientation and cannot represent a certification.
• Unlike the restrictions under Part II of the Code, those decreed for landscape reasons necessarily concern a plurality of indistinct subjects, and are published in the Official Gazette; thus, for example, the search for the decree of the relevant publication in the Gazette is already a certification, but it would be appropriate to verify if subsequently the restriction has undergone modifications in the perimeter (in some cases, even some sentences have annulled or re-perimeter the restrictions).
• A sure way to obtain a certification of the existence of the restriction (and recommended in cases of doubt or for particularly complex interventions) is to request the municipality for the certificate of urban destination. Unfortunately, in some large municipalities, the procedure is very long.

Cultural heritage buildings protected by law

We have already mentioned Article 10 of Legislative Decree 42/2004 regarding direct or explicit restrictions. This article states that certain properties are protected by law, regardless of whether a specific and punctual protection measure has been issued. In general, all movable and immovable property belonging to the State, regions, and local authorities (municipalities, metropolitan cities), public bodies, and non-profit legal entities, officially recognized ecclesiastical entities and which present historical, artistic, archaeological, or ethnoanthropological interest, are subject to protection.

However, not all properties are automatically subject to protection. For example, all immovable property that does not exceed 70 years of age is excluded from automatic protection. Therefore, all buildings owned by the persons mentioned above, including Religious Congregations, are automatically subject to protection when they reach the age of seventy.

Furthermore, not all properties are worthy of protection. Therefore, Legislative Decree 42/2004 provides a specific tool to assess whether a property that has reached the age of 70 must maintain its protected status or can be excluded. This is the ‘verification of cultural interest’ procedure (or V.I.C., Article 12).

This important verification needs to be included in any project or due diligence aimed at assessing the property’s conformity. It must be accompanied by precise information on significant dates concerning the building, such as, if available: start date of works, completion date, testing, and designer.

Restricted properties: obligations to comply with

The imposition of a restriction on a property, such as for historical or artistic interest, gives rise to the following obligations:

• No demolition, alteration, or restoration work can be carried out on a restricted property, nor can it be used for a purpose incompatible with its historical or artistic interest or likely to prejudice its conservation and integrity. Prior ministerial authorization is required for such modifications (art. 20 D.Lgs. 42/2004).
• It is possible to bear the costs necessary for the conservation, protection, or restoration of the restricted property (art. 30 D.Lgs. n. 42/2004).
• No act, whether onerous or gratuitous, that involves the total or partial transfer of ownership or possession of the property can be stipulated. Prior notification to the competent Ministry (which has the right of first refusal) is required.
• Any eventual public access to the interior of the property must be allowed.

Tax benefits for restricted properties

Despite the limitations, owning a restricted property also offers certain advantages, such as tax benefits for restoration and maintenance work. While regional tax regulations for restricted properties may vary over time and based on specific regulations, in general, the following benefits can be obtained:

• Deductibility of restoration costs: costs incurred for the restoration and maintenance of restricted properties are generally deductible from taxable income, within certain limits and under specific conditions.
• Tax credits: for certain restoration and recovery interventions, tax credits are provided, allowing taxpayers to recover a portion of the costs incurred through a reduction in their personal income tax.
• Substitute tax: in some cases, particularly for interventions of significant relevance, a substitute tax is provided, which is a reduced tax rate in the event of the property’s sale.

Can a restricted property be renovated?

As explained above, a restricted property can still be normally inhabited, but it is necessary to respect certain provisions, as it cannot be demolished, modified, or restored without the authorization of the Ministry of Cultural and Environmental Heritage.

This raises a series of questions about the conditions under which the owner and any potential tenant can intervene on such properties, considering that they are still responsible for the proper conservation of the property as determined by the restrictions.

To carry out renovation work on restricted properties, it is always necessary to submit the project to the competent territorial Superintendence. The Superintendence may request additional supporting documentation in addition to the project documentation and may also request the possibility of carrying out on-site inspections.

Can a restricted property be sold?

Yes, it is possible to sell a restricted property, but it requires following the procedures outlined in the Cultural and Landscape Heritage Code (Legislative Decree 42/2004).

The first thing to remember is that the property sale is, by law, subject to a suspensive condition: the non-exercise of the right of first refusal by the Ministry of Culture and other interested territorial entities.

This right of first refusal must be exercised within 60 days from the communication to the relevant Superintendence. This communication is provided by the notary who has drawn up the deed within thirty days of its execution; from the moment of receipt of the communication (and its related protocol) the 60-day period begins.

It is important to underline that, while the 60-day period is pending, the effects of the deed are suspended (the property is therefore not yet transferred) and, above all, the restricted property cannot be delivered to the purchasing party (as expressly provided for by law).

Only after 60 days, if the right of first refusal has not been exercised, the property is effectively transferred to the purchaser.

However, there is still a formal step that should not be overlooked and whose modalities may vary depending on the Region in which the deed is drawn up. We are referring to the so-called ‘act of verification’, that is, a second notarial act in which the original contracting parties declare that the right of first refusal has not been exercised and that, therefore, the purchase contract is fully effective. This act must be drawn up and registered for tax purposes within 20 days of the expiry of the 60-day period relating to the right of first refusal.

This second formal step may have different modalities depending on the Region of Italy in which we find ourselves. Part of the doctrine and (authoritative) notarial practice, in fact, believes that since the suspensive condition is a legal condition, there is no need for a second notarial act but merely a public registry registration. According to this interpretation, therefore, there will be no further formalities necessary.

However, the issue of the 20-day period within which to notify the Revenue Agency remains. In this case -in the absence of a registered notarial act of verification- it will be the responsibility of the parties to proceed directly with the notification to the Revenue Agency Office where the purchase deed was registered.

We conclude by observing that restrictions on properties do impose limitations on owners, including many religious congregations, but they also represent a fundamental tool for the protection of Italy’s cultural heritage, guaranteeing the preservation of buildings and landscapes of inestimable value, contributing to making Italy a unique country in the world.If you would like further information on this topic or personalized assistance, please contact us at our email address: info@fiatlux.legal. We will be happy to help you!