Insights

THE CONCEPT OF ADJACENT AREA IN TOWN PLANNING MATTERS

To qualify an artifact as an adjacent area it determines, as noted, the possible feasibility of the same without the prior request of the building permit. The notion of adjacent area contained in article 817 of the Civil Code is, however, general and not applicable in the town planning area. With judgement No. 61 published on January 3rd, 2017, TAR Campania, with reference to two canopies placed close to an existing building and in expansion of the spaces of the same, it noted that the same cannot be qualified as adjacent areas but as autonomous buildings. In particular, referring to what it has already been expressed by the judges of Palazzo Spada, it was stated that the town planning adjacent area is characterized by different and more elements as compared to the statutory one, recognizable in quantitative scarceness of the artifact and in the existence of a functional link between the artifact and the main building. Therefore, in order to consider an artifact as an adjacent area, it is necessary that the same is of a size that does not alter significantly the structure of the territory and that it should form part of a main building, not separable from the same without involving the alteration of the function and the essence of the whole.

THE CONCEPT OF UNLAWFUL PROPERTY SUBDIVISION

The Council of State ruling no. 5328 of November 24th 2015, has ruled on the notion of unlawful property subdivision, specifying the assumptions that constitute violations sanctioned by art. 30 of  D.P.R. 380/2001. The judges of the Palazzo Spada claim that we can talk of unlawful property subdivision only in case of a preordained transformation of a portion of land, such as to add a new and composite layer to the urban fabric, resulting in an establishment or addition of the necessary infrastructure works. The unlawful property subdivision, therefore, should not be confused with the making of any unauthorized building intervention or not compatible with the zone planning regulations; in order to configure it and, therefore, sanction it, even in advance, is required the existence of precise and unique elements or at least a presumption eligible to foreshadow a structure incompatible with the existing one or with the structure provided by the planning instruments.

FRAMEWORK OF THE DEFENDANT’S NOTION RELATED TO THE BUILDING REGULATIONS

Speaking about an appeal to a cancellation in self-defense building permit amnesty, Consiglio di Stato, by its judgment No 4582/2015, has clarified the notion of defendant and specified the necessary requirements for an entity to be considered as the representative.
To qualify as defendant in procedural terms, in fact, is necessary the existence of two requirements: one formal, such as the indication of the name in the administrative measure, and one substantial, consisting in the existence of an interest in favor of maintaining the situation defined by the measure.
Therefore, it is necessary to distinguish between the position of the person who is the holder of a general interest in maintaining effective the contested measure, which can be the author of a complaint or of a report to the Administration, and the position of the one who by the measure receives a direct and immediate advantage, that assumes, therefore, the status of defendant; so, the appeal must be notified to him to be valid, pursuant to the provisions of art. 41, paragraph 2, Cod. Proc. Amm.

NOTES ON EXPO REAL 2015 - RICCARDO DELLI SANTI AND FIDIS GIAMMARCO BORTIGNONI

Monaco gave to the operators of the real estate two days of sun and end-of-summer temperatures. The optimism that we sensed in talks with managers and investors has contributed to a general feeling that numerous business were concluding: All the stands were full and we ourselves have found many occasions of interesting meetings in which we have had the opportunity to see how Italy is definitely back on the radar of investors. The prevalence of the interest seems to be allocated on the thematic areas of the residence. During an interesting panel we met Adagio City Aparthotels, Starwood Hotels & Resorts, Room Mate / BeMate and Zoku, managers of serviced apartments whose dimensions have become really important. Some of them have already invested in Italy (Florence and Milan), others are preparing to do so. This is certainly an area where abandoned buildings from the previous functions can find interesting opportunities... For the entire text, click here

NEW RULES FOR NON-HOTEL ACCOMODATIONS

With the introduction of the Regulation no. 8 of August 7, 2015 of Regione Lazio, published on BURL no.73 of September 10, 2015, the regional legislator have taken action in order to simplify the regulations in force concerning non-hotel accomodations, to improve the quality of tourism in the region and to counter unregulated activity. To start a non-hotel accomodation activity, must be presented to the local authority the SCIA, which, in contrast with previous rules, collects in one procedure both the commencement of certified statement both the self-certification by the proponent of the type, classification and designation of the structure. In case documents have not been submitted, therefore, has been provided a computerized system for monitoring discrepancies between the structures with proper authorization and the total of the structures present in the major online portals. Among other innovations, it should be noted the provision of new types of tourism accommodation and substantial changes in the parameters for the classification of non-hotel accomodations, in addition to the possibility of managing the structure both in an entrepreneurial form both in a non-entrepreneurial form.

ADMINISTRATIVE SIMPLIFICATION REGARDING TO SCIA (COMMENCEMENT OF CERTIFIED STATEMENT)

With the approval of Law no. 124/2015 on “Deleghe al Governo in materia di riorganizzazione delle amministrazioni pubbliche” (Powers delegated to the Government regarding reorganization of public administrations), were introduced several innovations regarding to administrative simplifications and in particular in the field of SCIA (Commencement of certified statement). In order to promote the activities that can be legitimized by SCIA, the legislator have taken action by setting a deadline of 18 months in which the administration, if there are reasons of public interest, may adopt automatically the measure of cancellation of an authorization or concession of economic benefits, and a 60-day deadline to invite the reporting agent to take the measures necessary to conform the started activity to the applicable legislation in case of lack of requirements and conditions required by law. This measure is a positive signal for all national and international operators who intend to invest in the Real Estate in Italy, as it provides them greater certainty on the timing of administration and, consequently, a reduction of investment uncertainty.

TOWN PLANNING AGREEMENTS - JURISDICTION AND PERTINENCE OF THE PRINCIPLES REGARDING OBLIGATIONS AND CONTRACTS

The TAR Lombardia - Milano, with the judgment of May 11th 2015 n. 1137, has excluded that the exclusive jurisdiction of the Administrative Judge on building and town planning issues can also be extended to the enforcement of the guarantee policy related to the payment of the urbanization costs, defining, instead, that the jurisdiction of the Administrative Judge subsists with regard to the controversies related to the fulfilment of the obligations deriving from the town planning agreements connected to the allotments. Moreover, the TAR has ascertained that, in case of non-fulfilment of a town planning agreement, the principles regarding the obligations and contracts are effective with the consequence that, in case of non-execution of the contractual performances borne by the allotting party, it is its burden to prove the non imputable cause and that the unilateral renounce of the agreement constitutes a real annulment of the contractual agreement in violation of the art. 1372, comma 1, c.c. and of the art. 21 sexies of the law n. 241/1990.

 

THE UNITED SECTIONS OF THE SUPREME COURT RECOGNIZE THE VALIDITY OF THE “PRELIMINARY OF A PRELIMINARY”

The Judgement n. 4628/2015 with which the United Sections of the Supreme Court pronounced itself, went back to the validity of the so-called concept of “preliminary of preliminary”, in order to establish if to share the former jurisprudential orientation which sanctioned its absolute nullity or if, instead, endorse the orientation (until now in the minority) which gave the parties the option to refer to a following more complete deed in relation only to the regulation of the accessory not yet defined elements. With said judgement the Supreme Court has, today, recognized the legitimacy of the “preliminary of a preliminary”, affirming that the agreement denominated preliminary with which the parties commit to stipulate another following preliminary agreement, has to be considered productive of effects only if there is a clear interest of the parties to form the contract in a progressive way based on the differentiation of the negotiation contents and the more restricted area of regulation of interests is covered by the constraints originated in the first preliminary. So, in the real estate negotiations it will be possible to use such form, which has been considered null by the main jurisprudence of the Supreme Court.

 

THE INNOVATIONS REGARDING THE BUILDING REGULATIONS INTRODUCED BY THE ‘SBLOCCA ITALIA’

With the “Sblocca Italia” (D.L.133/2014 converted by the L.164/2014), the legislator tries to enhance the national economy, encouraging new laws for procedural simplification regarding the building regulations. With this purpose, on one side, the administrative procedures for the release of the building permits are being simplified, reducing the number of building interventions subject to the “permesso di costruire” (building permit) and increasing the works included in the conservative interventions like the “extra-ordinary maintenance”. On the other side, innovative instruments have been provided like ‘the conventioned building permit’ which concurs, substituting the second level zoning tools, to the direct and negotiated implementation of scopes of intervention, also of big dimension, but with few or insufficient infrastructural equipment. The notion of “destination of use” has also been intensively elaborated, providing forms of transformation and of functional modification that - occurring in the same homogeneous category - always have to be admitted by the local town planning instruments.

 

DEMOLITION ORDER FOR BUILDING ABUSE HAILING FROM THE PAST

The Consiglio di Stato, with the judgement of May 18th 2015 n. 2512 has reaffirmed the principle according to which, in case of building abuses hailing from the past, the Public Administration is obliged to motivate specifically the reasons of public interest which lie under the demolition injunction, taking into consideration also the legitimate entrustment borne by the private. In the specific case, the Consiglio di Stato has pronounced itself in relation to an abuse regarding only minor modifications of a building realized in 1958 and detected after 55 years. The Municipal Administration had issued a demolition injunction, acknowledging an hypothesis of essential variation in respect to the building permit, without supplying any adequate motivation in relation to it, nor justifying the need for a demolition, even though the time passed by and the consequent entrustment borne by the private.