WHAT IS THE URBAN AND CADASTRAL CONFORMITY OF A PROPERTY?
WHAT PENALTIES MAY BE INCURRED IF THIS IS NOT IN ORDER?
Dear brothers and sisters,
Today we want to clarify two important legal concepts that are very often confused in practice but that have a different aim and purpose, as well as different legal consequences in the event of non-compliance with the relevant legislation. In fact, urban and cadastral conformity are often confused or exchanged between them. Let’s find out together what they mean.
Urban and cadastral conformity in comparison.
Cadastral conformity: this is the correspondence between the factual state of the real estate unit and the relative cadastral data as well as the corresponding plan. The Cadastre (former Territorial Agency now merged into the Revenue Agency) depends on the Ministry of Finance and has a fiscal and non-urban planning function. It also has no evidentiary function, that is, it does not provide certain data relating to the ownership of the property and much less on the urban legitimacy of the properties – paradoxically, there may be stacked but abusive properties.
Urban conformity: this is the correspondence between the de facto state of the property and the set of qualifying building certificates issued throughout the building’s construction history, both as a volumetric plan and for the individual real estate units. This aspect of regularity is the relevant one and must be verified before any building intervention and before the sale of the property, indeed, even better before commissioning real estate agencies or advertising it with listings. This last step serves to detect the presence or absence of abuses or discrepancies that could render notarial deeds null and void, open the way to possible litigation or become a pretext especially for the promissory buyer to depreciate the value and request substantial reductions.
The importance of urban and cadastral conformity.
What allows us to verify the presence or not of a building abuse is not the Land Registry, but only the building certificate that has been filed in the Municipality of reference. In fact, it may happen that a property is compliant from a cadastral point of view but not from an urban planning point of view, or even the exact opposite.
To build any property this must be authorized by a procedure of the municipal administration of the place where the property is located, called building/rating certificate. The reference legislation is the TEU (Consolidated Law on Construction DPR 380/01). The correspondence between the project filed with the Municipality by a qualified technician and the state of fact demonstrates urban regularity (also called building regularity).
When is conformity required?
- For sale.
- In case of building interventions, such as for a renovation.
- For the application or subrogation of a mortgage.
How does conformity occur?
To check whether a property (apartment, villa, shop, or any other property) is set with urban conformity, it is necessary to compare the de facto state with the project deposited in the municipal archives. The building could have been built differently from the project presented to the Municipality, changed or modified over time.
Main causes of non-conformity
In practice, the discrepancies are innumerable, and each case deserves a specific assessment and resolution. Not all discrepancies can be remedied, so you must pay the utmost attention before making a purchase. There are several types of non-conformities that do not allow the issuance of conformity:
- Illegal building: when there is no qualifying title (the property was built without any administrative provision). In this case, only a new building permit or a Building Permit in Sanatorium can remedy the situation.
- External modifications and volume increase: it is possible to heal with a SCIA or Building Permit in Sanatoria. Example: closing the balcony with a veranda, opening a window or door, changing the intended use, merging or splitting up real estate units.
- Small internal changes: in this case it is possible to remedy the situation with a CILA for work already carried out (if the work was carried out after 26th May 2010) or with a SCILA in the Sanatoria. Example: displacement of some rooms, demolition of partitions, union of the living room and the kitchen.
Urban planning conformity in notarial deeds.
The property to be sold must be equipped with the cadastral compliance, mandatory since July 2010, while, regarding urban compliance, the obligations are more complex:
- the deed must state with what qualifying title the property was built (mentioning the license, concession or building permit);
- however, if the property was built before 1st September 1967, it is possible to omit the mention of the title.
- This simplification is allowed precisely for those historic buildings whose projects could be difficult to trace in the municipal archives;
- In the event of major changes to the property (falling within the so-called “heavy renovation” referred to in art. art. 23 paragraph 3 of Presidential Decree 380/01) it is necessary to indicate in the deed the respective authorizing/enabling titles with which they were carried out (for example demolitions and reconstructions, fractions, renovations, extensions, elevations, etc.);
- In the presence of building abuses remedied in the past with a building amnesty/exoneration, the issuance of the respective titles in amnesty must be mentioned in the deed;
- In the event of minor changes and minor interventions to the property, it will not necessarily be mentioned in the deed which authorisation or communication was used to carry out the works, however it is strongly recommended to avoid possible civil consequences between seller and buyer – for example, the case concerns partial discrepancies, which according to a judgment of the Court of Cassation do not formally render the notarial deed null and void, without prejudice to the right to compensation for damage and partial termination.
Who is responsible for checking for abuse?
It is important to have urban conformity verified by a qualified technician because the notary has no responsibility for checking the absence of abuse: the most recent case law in fact considers that urban conformity is declared by the seller and the notary has no obligation to verify that this declaration is true. Any real estate agency also has no obligation or responsibility for the actual absence of abuse, so the best way to protect yourself is to appoint a qualified technician who has a criminal responsibility when making a statement and will hardly declare falsehood.
Consequences for building abuse and irregularities.
The formula present in the deeds is generally the following: “the property is purchased in the de facto and de jure state in which it is located”, for this reason the buyer after the deed will also inherit any abuses or building irregularities. But who buys a property with urban conformity defects that can have consequences?
- Serious abuse
In the event of serious building abuses, in addition to a criminal complaint, it will be necessary to provide for the demolition and restoration of the places and in some cases the property may be acquired by right free of charge from the assets of the Municipality.
The most frequent cases of unauthorized interventions that involve abuse are an unauthorized mezzanine, the opening or moving of a window, the construction of a veranda on the terrace, the splitting of several units, the modification of a balcony. It is not always possible to heal and sometimes it is necessary to report the situation as in the last project authorised by the Municipality.
- Less serious irregularities
Other types of irregularities, less serious, only involve administrative sanctions and can be resolved with a SCIA in Sanatoria or a CILA. They are usually due to the modification of the internal distribution: displacement of the kitchen, demolition and reconstruction of partitions, fusion of rooms. The SCIA in sanatoria allows to heal irregular or abusive building works that should have been carried out with a complaint of commencement of activity. CILA, on the other hand, can be used, a simpler and cheaper practice, only if the irregular work was carried out after the entry into force of Law 73/2010, i.e. on 26 May 2010. Therefore, the works carried out before this date must be healed with a SCIA in Sanatoria.
Regularisation can be simple, but it is always necessary to check whether the interventions comply with municipal regulations (sanitary and building hygiene). For example, if a wall has been demolished to widen the living room, check that the surface area of the new room is greater than 1/8 of the surface area of the windows. This is a typical case in which even for a small intervention it is not possible to regularize and to have complete urban regularity it is necessary to rebuild the wall.
Practical tips
In conclusion, if the property has never been authorized by a qualifying title, it cannot be sold (the responsibility for control lies not with the notary but with the seller), in the event of minor abuses, the property can be sold and the new buyer will inherit the responsibility for the abuse (with possible criminal sanctions and risk of demolition). There are also small discrepancies that involve only administrative sanctions but can decrease the value of the house because they make it difficult to access mortgages or future sales and cannot always be regularized.
The costs for regularization, penalties and criminal liability are in most cases for the buyer and not the seller. The advice is to always buy a regular or regularized property and to have the urban regularity checked by your trusted technician who is subject to criminal liability with a declaration.
Therefore, it is advisable for the seller as for the buyer, and in any case for all parties involved in the inter vivos transfer of a property, to carry out, before any form of sale, the checks of regularity and urban compliance by a qualified professional expert in the field, as well as to have all the legal aspects related to the sale verified by a lawyer.
The Fiat Lux team is here to clarify any doubts you may have on the subject. You can write to us at our address: info@fiatlux.legal and we will be happy to provide you with all the information you may need to help you in your negotiation choices.
Kind regards and see you soon,
Fiat Lux Legal
Avv. Federica Loreti