The 'taxation of building abuse' represents an alternative and derogatory sanction compared to the primary one that arises from the verification of building abuse, consisting in the demolition and restoration of the state of the places.
"Taxation" is permitted - exceptionally - when in the execution phase of the restoration and/or demolition sanction, the municipal technical office ascertains that the demolition of the illegal part is not possible without compromising the consented part.
In that case, the manager or office manager imposes a pecuniary sanction, in relation to some criteria and parameters, otherwise commensurate with the rules that allow its application.
Taxation is not always permitted.
In particular, it is not permitted - as it does not constitute a feasible alternative to demolition - in the case of interventions carried out without a building permit, in total non-conformity or with essential variations.
It is not in the case of interventions carried out on land owned by the State or public bodies in the absence of a building permit or alternative SCIA.
It applies instead to interventions carried out in partial non-compliance with the building permit or to renovation interventions carried out in the absence or in total non-compliance with the building permit, which, according to the law, must be removed or demolished at the care and expense of the responsible for building abuse.
Based on the latter case, taxation becomes an option when, following a detailed assessment, it is found, as mentioned above, that restoring the original state is not feasible without causing irreparable damage to the part of the building built in compliance with the building permit.
The impossibility of demolition must be declared by the interested party (owner or person responsible for the abuse) and ascertained by the Municipality in the phase following the injunction, or when the demolition order is issued.
The Supreme Assembly recently intervened on the topic with the pronouncement of the Plenary Meeting n. 3/2024 which gave an answer to the problems concerning the quantification of the financial penalty.
In particular, the correct interpretation of the art. 33, paragraph 2, of Presidential Decree no. 380/2001, which provides for the possibility of inflicting a financial penalty equal to double the increase in value of the property following the construction of illegal works updated to the date of execution of the abuse according to the ISTAT construction cost index.
According to a first interpretation, the sanction had to be determined according to the provisions of the ministerial decree (392/1978) and then the relative amount had to be updated to the date of execution of the abuse on the basis of the ISTAT construction cost index.
According to a different perspective, the sanction had to be determined with reference to the last production cost determined by ministerial decree, updated to the date of execution of the abuse; the amount thus obtained had to be increased on the basis of the ISTAT construction cost index.
The Plenary Assembly - which also clarified that for "date of execution of the abuse” must be understood as the moment of realization of the abusive works (and not when the abuse was ascertained) – it provided that for the purposes of determining the pecuniary sanction to be determined pursuant to art. 33, paragraph 2, of Presidential Decree 380 of 2001, the conventional surface area must be determined pursuant to art. 13 of law no. 392/1978 and the determination of the unit production cost, on the basis of the decree updated on the date of execution of the abuse. The overall production cost, given by multiplying the conventional surface area with the unit production cost, must be updated according to the ISTAT construction cost index.
The ruling is important because it established the first clarifying principles on the quantification of sanctions and on discounting, also facilitating the circulation of properties with non-recoverable abuses, allowing the calculation of the decrease in value.