Since cities grow and the population increases, citizens feel the difficulty of parking, especially in metropolitan cities as Rome.
How is parking in urban areas regulated?
By law, new buildings in built-up areas must reserve spaces for parking, the size of which varies in proportion to the built-up area.
Parking areas are built by municipalities, also by means of state contributions and subsidised loans or by private individuals.
Let us see, in detail, what the law provides for and what are the constraints related to the transfer of ownership of parking areas.
THE TOGNOLI LAW
The main source of legislation on parking is the Tognoli Law (Law 122/1989), named after the minister who drafted it, Carlo Tognoli, Italian politician and journalist.
With this law, an attempt was made to meet the demand for parking spaces in municipalities with high population density identified by the law itself or by the regions on the basis of certain criteria (needs, traffic intensity, etc.).
The municipalities of Rome, Milan, Turin, Genoa, Venice, Trieste, Bologna, Florence, Naples, Bari, Reggio Calabria, Messina, Cagliari, Catania and Palermo, as well as the Italian municipalities identified from time to time by the Regions, are required to prepare a three-year Urban Parking Plan containing the location, type, priority and timing of the measures to be implemented, as well as an indication of the relevant financial burdens.
According to the Tognoli law, 'In new constructions and also in the areas pertaining to the constructions themselves, special parking spaces must be reserved for no less than one square metre for every ten cubic metres of construction'.
These spaces constitute appurtenances, pursuant to Articles 817, 818 and 819 of the Civil Code, of the buildings to which they are functionally connected.
In this way, the rule introduces a proportionality between built cubature and the area allocated to parking.
Beware, however: the rule speaks of 'new constructions'. What happens to existing constructions that are not provided with appurtenant parking areas?
Such areas can be realised ex post in different ways:
* Direct realisation by the municipality (art. 5, Tognoli law)
In this case the Municipality directly provides for the design and execution of the works.
* Realisation under surface right with state contributions (art. 5, Tognoli law)
The municipality may grant companies or construction companies, including cooperatives, a concession for the construction of parking areas.
If the interventions are carried out with State contributions, it is necessary for the contracting company to sign an agreement with the municipality, lasting no longer than 90 years, having as its object the establishment of right of surface over all or part of the area.
* Construction of parking spaces underground or on the ground floor of buildings (art. 9 Tognoli law)
Owners of buildings may construct parking spaces in the basement or ground floor of buildings to be used as appurtenances to individual building units, even in derogation of urban planning instruments and building regulations in force. These parking spaces may also be built, for the exclusive use of residents, in the subsoil of appurtenant areas outside the building, as long as they do not conflict with urban traffic plans, taking into account the use of the surface above and compatible with the protection of water bodies. All this in compliance with the constraints provided for by the legislation on landscape and environmental matters and the powers attributed by the same legislation to the Regions and the Ministries of the Environment and Cultural Heritage to be exercised within 90 days.
When the aforementioned interventions fall on condominium areas, they must be approved by the condominium assembly with the double majority envisaged by Article 1136, paragraph 2, of the Italian Civil Code (majority of those present and at least half the value of the building).
Municipalities, after determining the criteria for the transfer of the surface right and at the request of interested private individuals or construction companies, including cooperatives, may provide, as part of the Urban Parking Plan (UPP), for the construction of parking spaces to be used as an appurtenance of private buildings on municipal areas or in the subsoil of the same. This provision also applies to interventions that are in the start-up phase or have already begun.
Also in this case, the establishment of the surface right is subject to the conclusion of an agreement.
LAW FRAMEWORK OF THE TOGNOLI LAW
As we have seen, the Tognoli law applies to parking spaces built underground or on the ground floor of buildings in urban areas characterised by an insufficient number of parking spaces (and therefore not in conformity with urban standards). It does not apply, therefore, to urban areas that do not have this difficulty, nor to rural or agricultural areas.
According to the Court of Cassation (sentence 1488/2018), the law does not recognise the right to raise or raise the roof of an appurtenant garage that is, however, structurally autonomous. The law, in fact, does not implicitly authorise increases in cubage that require an ad hoc authorisation title as provided for by the Consolidated Law on Construction (Presidential Decree 380/2001), and not a simple CNAB (Certified Notice Activity Beginning).
CONSTRAINTS ARISING FROM THE TOGNOLI LAW
Pursuant to express legal provision (Article 41-sexies of Law 1150/1942), parking spaces created to serve new buildings are not subject to pertaining constraints or rights of use in favour of owners of other building units and are transferable independently from them.
The exclusive use for parking cannot, however, be changed. On the contrary, the pertinence constraint exists for parking spaces realised underground or on the ground floor of the building to which they are functionally connected: "The ownership of parking spaces realised in accordance with paragraph 1 [i.e. those realised underground or on the ground floor] may be transferred, also in derogation of the provisions of the building title authorising the construction and the subsequent deeds of agreement, only with the contextual destination of the transferred parking space as an appurtenance of another building unit located in the same municipality. The parking spaces realised pursuant to paragraph 4 [i.e. those realised under surface right] cannot be transferred separately from the building unit to which they are appurtenant, and the relevant deeds of transfer are null and void, except when expressly provided for in the agreement stipulated with the municipality, or when the latter has authorised the deed of transfer" (Article 9, paragraph 5, Tognoli Law).
In other words, in order for the appurtenance to be transferred separately from the building to which it is functionally connected, an express provision (authorisation or nulla osta of the municipality, as the case may be) is required.
To summarise, the transfer of parking areas is subject to two different legal regimes:
1. parking spaces built underground or on the ground floor of buildings: the alienation of the parking area only is possible, even in derogation of the building title and the previously stipulated agreements, provided that the area itself keeps an appurtenant bond with another building located in the same municipality;
2. car parks built under the right of superficies: they must be transferred at the same time as the property (general rule) unless expressly exempted in the agreement stipulated with the municipality or in the permit.
HOW TO APPLY FOR THE NULLA OSTA
In the Municipality of Rome, the nulla osta must be requested by booking an appointment at the Office for the Issue of Authorisations - Car Garage Nulla Osta.
The Office is responsible for the following procedures:
• authorisation for the transfer/transfer of the surface right of car boxes for car parks falling within the Urban Parking Plan (UPP) pursuant to art. 9, paragraph 4, Tognoli Law;
• issue of authorisation for the transfer of surface ownership for parking spaces falling within the PUP pursuant to art. 6 of the Tognoli Law.
The Office shall verify the transfer takes place in compliance with the Tognoli Law and in conformity with the Urban Parking Plan (UPP) of the Municipality of Rome.
The absence of the authorisation or nulla osta renders the sale null and void for non-compliance with mandatory regulations.
ADE'S ANSWER TO INTERPELLO NO. 33/2022
A recent circular of the Italian Revenue Agency ruled out the eligibility of the first home benefits on the purchase of a box for appurtenant use since the box, more than 1 km away from the dwelling, was too far from the main unit.
On account of this distance, the proximity (and therefore pertinentiality) to the main unit was excluded.
We are, therefore, faced with a paradox: the Tognoli law allows, subject to authorisation by the municipality (nulla osta), the transfer of the parking space to be appurtenant to another dwelling located in the same municipality (but not in the same urban area), without setting limits on the distance between the appurtenance and the main unit; the Italian Revenue Agency, on the other hand, excludes the nature of appurtenance of the parking space located more than 1,000 metres from the dwelling for the purposes of the recognition of the first home relief.
Italian Revenue Agency's orientation seems to us, honestly, inconsistent with the intention of responding to the need for parking spaces, especially in a city like Rome, as it penalises the private individual who chooses to purchase a parking space or a box of his own, even if not nearby the dwelling, in order not to further burden public spaces.
The Tognoli law represents an important attempt to provide an effective response to parking needs in municipalities with high population density.
This is not only to favour the viability and traffic flowing, but also to ensure better liveability and attractiveness of cities (especially art cities), through the rationalisation of spaces and the protection of urban decorum.
Do you have to sell a box built under an agreement with the municipality and do not know how to do it?
Contact us for an appointment, we will explain step by step the procedure to follow to obtain the authorisation.