It is mistakenly believed that the presence of a building permit automatically makes the property fit for use.
This is not the case, as confirmed by several rulings of the Council of State (sentence no. 5319/2020; sentence 6091/2021).
The building permit (e.g. building permission) and compliance with safety standards operate on two different levels: the first ascertains compliance with building and town planning regulations; the second assumes that the building has been constructed in compliance with the technical regulations on health, hygiene and energy saving in buildings.
This means that the granting of a building permit does not automatically imply the granting of compliance with safety standards.
It is therefore always advisable to check, with the help of a technician, whether the building is complaining ti safety standards; if not, it is necessary to submit the S.C.Ag., about which we have spoken in a previous article.
COMPLIANCE WITH SAFETY STANDARDS
The purpose of the compliance with safety standards certificate is to ascertain, by means of a certified declaration issued by a qualified technician, that the building meets the following requirements:
* energy saving of the building;
* conformity of the installations;
* compliance with digital infrastructural obligations.
It is, in essence, a technical conformity.
THE BUILDING PERMIT
The issuing of a building permit (building permission, CILA, SCIA, SCIA in lieu of building permission) ascertains compliance with urban planning and building regulations.
It is therefore clear that building permits and compliance withs safety standards certificate serve different purposes.
The misunderstanding of the supposed automaticity between the existence of a building permit and the compliance certificate probably lies in the wording of Article 25 of the p.d. 380/2001, which provides that the compliance with safety standards certifies, among other things, compliance with urban planning regulations.
However, the provision must be understood in the sense that accessibility cannot be granted in cases of non-compliance with building and town planning regulations (which is a conditio sine qua non of the former) and not in the sense that urban planning compliance automatically implies compliance with safety standards.
In fact, the last requires the existence of both requirements, urban-planning conformity and the technical requirements indicated above.
The opposite is also true, of course: compliance with safety standards does not replace the lack of a building permit.
COMPLIANCE WITH SAFETY STANDARDS AFTER AMNESTY
Following the amnesty concession or authorisation, the compliance certificate may also be issued in derogation from the regulations, provided that the amnestied building meets the conditions of hygiene and healthiness prescribed by primary legislation.
COMPLIANCE WITH SAFETY STANDARDS FOR OLD BUILDINGS
The compliance certificate is not required for buildings whose construction was completed before 24 August 1934, the date on which Royal Decree 1265/1934 came into force, and which have not been subject to the building works indicated in the TUE. In the case of old buildings it is necessary that the seller:
* certify that the compliance certificate is not available;
* declare that the property is suitable for its intended use;
* declare that there has been no declaration of unfit non compliance with safety standards of the building or part of it.
COMPLIANCE WITH SAFETY STANDARDS FOR TENANCY
Compliance is closely linked to the intended use of the property.
What happens if the administrative measure necessary for the specific intended use has been denied (for example C/1 in the case of a beauty salon) or if the premises are declared unfit for use?
The lease is valid, but the tenant can request termination of the contract.
For these reasons it is advisable not to include a reference to the compliance certificate in the lease without first checking whether the requirement exists in the specific case.
LACK OF COMPLIANCE
The lack of a compliance certificate affects the enjoyment and economic saleability of the property.
If the certificate is not available, the tenant or the buyer must declare at the time of the conclusion of the contract that they are aware of this, accepting the property in its current state.
It would therefore be advisable for the seller to ensure that he has compliance certificate before making any such declaration.
The buyer may waive this requirement, provided that the waiver is express and appears in the final deed of sale.
A professional real estate broker always advises his client to check, through the intervention of a technician, whether the property sold or rented (even if it is a commercial lease) is in possession of the compliance certificate with safety standards.
This is because the absence of a certificate, while not preventing the legal saleability of the property, certainly affects its economic viability.