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WHAT SHOULD YOU DO IF THERE ARE BUILDING DEFECTS?

  • 20/05/2022
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When you want to buy a property, it is important to check for any irregularities in the building. In addition to the existence of a legitimate building permit, you need to verify that the description and the consistency of the property as shown in the documentation correspond to the actual state of the property.
Here are some examples of the most common irregularities:

* interior spaces’ different distribution;
* creation of a second bathroom;
* moving the kitchen;
* cubic extension (closing of balconies, creation of a veranda, etc.).

Let’s take a look at the existing discrepancies and whether they can be rectified.

EXECUTIVE TOLERANCES (ART. 34 CONSOLIDATED TEXT OF CONSTRUCTIONS)

We talk about executive tolerances when the irregularities are due to material errors during construction within the tolerance limit of 2% of the measurements required by the permit.
Examples of construction tolerances are non-compliance with height, distance, volume and covered area.
For buildings not subject to protection, geometric irregularities and minor changes to building finishes, as well as changes in the location of installations and internal works, carried out during the implementation of building permits, are also considered executive tolerances, provided that they do not violate urban planning and building regulations and do not affect the building’s compliance with safety standards.
Executive tolerances, not constituting building violations, are declared by the qualified technician when certifying the legitimate state of the building.

NON-CONFORMITY WITH REGARD TO THE PROJECT

Maybe the building ins’t compliant to the cadastral plan without ever having been renovated.
Let's take the case of a building whose balconies are smaller than those shown on the cadastral plans. So you need to look for the original project at the technical office of the municipality, as well as the original plans.
The cadastral plan may not be reliable because it is out of date. While the Land Registry has no probative value and its data are only of tax value, the municipal findings are proof of the property's town-planning regularity. In order to resolve this dilemma you need to hire a technician to obtain the necessary documentation (original project, initial plan, photographic surveys).
If the variations are minor, a simple correction of the data and a request for cadastral updating will be sufficient.
If, on the other hand, the discrepancies are major, the technician must activate an amnesty procedure for the abuse.

TOTAL DIFFERENCES (ART. 31 CONSOLIDATED TEXT OF CONSTRUCTIONS)

Total difference corresponds to changes leading to:

* the building body’s construction totally different from the approved one due to its typological, plano-volumetric or usability;
* the building volumes’ construction beyond the limits indicated in the project (and exceeding 2% of the approved volume) such as to give it specific and independent importance.

The total difference of the work is equivalent to the absence of the permit.

ESSENTIAL VARIATIONS (ART. 32 CONSOLIDATED TEXT OF CONSTRUCTIONS)

Essential variations are:

* change of intended use implying variation of the urban standards provided for by Ministerial Decree 1444/1968; 

* substantial increase in cubage or floor area, to be assessed in relation to the approved project; 

* substantial changes in the urban and building parameters of the approved project or in the location of the building on the appurtenant area; 

* change in the characteristics of the approved building intervention; 

* violation of the current rules on seismic building, when not related to procedural facts. 


Such works fall within the hypothesis of total difference if concerning buildings subject to historical, artistic, architectural, archaeological, landscape, environmental and hydrogeological constraints, as well as on buildings falling within national and regional parks or protected areas. The Regions may provide for other cases of essential variations.
Essential variations are not considered to be those affecting the amount of accessory cubic capacity, technical volumes and the internal distribution of individual housing units.
An essential variation should not be confused with a "variant", which involves mere design changes (qualitative or quantitative) of little substance.
While the essential variation requires a proper building permit, completely independent from the original one, for the variant it is sufficient to apply for a variant permit while the building is still under construction.

ASCERTAINMENT OF CONFORMITY (ART. 36 CONSOLIDATED TEXT OF COSTRUCTIONS)

If the sites’ actual state differs from the land registry records and building permits, a conformity assessment can be carried out.
For works carried out in the absence of a building permit, or not in compliance with it, or in the absence of an SCIA in the cases referred to in art. 23, paragraph 01, of the Consolidated Text Of Constructions, or not in compliance with it, the person responsible for the abuse or the current owner of the property can obtain a permit for amnesty if the work is in compliance with the urban planning and building regulations in force at the time of its implementation, and also at the time of submission of the application.
This is known as "double conformity": so the work must comply with the urban planning and building regulations at two different times:

* at the time the application was submitted;
* at the time when the building abuse took place.

Therefore, only situations for which there is double conformity can be remedied through the procedure pursuant to art. 36.
Total difference and essential variations can never be solved with the conformity assessment procedure.
In these cases the owner, if he wants to sell the property, will necessarily have to restore (at his own expense) the status quo ante in order to comply with the condition of double conformity.
The declaration of double conformity is issued and signed by the qualified technician (engineer, architect, surveyor).
The declaration has the value of an affidavit; in the event of a false declaration, the technician is liable under civil and criminal law.

FAILURE TO PROVIDE FOR THE AUTHORISATION TITLE

With reference to buildings constructed when the law did not provide for the obligation of a building permit, the information useful for proving the conformity of the building with the urban planning regulations may be deduced:

* from land registry information at first sight;
* from other probative documents (photographs, cartographic extracts, archive documents);
* from other deeds, public or private, whose provenance can be proved;
* from the permit governing the last building intervention involving the whole building or building unit (building permit; CILA; SCIA; SCIA in substitution of the building permit; amnesty).

It is also possible that there was a permit but the owner of the property is no longer in possession of it, nor is it possible to find a copy in the archives.
In this case, the existence of the permit can be proved otherwise in the manner set out above.

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