Does building abuse freeze the Superbonus?
According to the general rules, only maintenance work can be carried out on a building where there is building abuse, while all innovations and improvements can only be authorised in a context of full legitimacy and building regularity of the building; in the light of this principle, it would therefore be impossible to access the tax bonuses if one is not in a completely regular starting situation.
- However, it is necessary to distinguish 3 types of building abuse:
abuses resulting from the use of a different type of measure than the one provided for a given intervention (for example, a DIA instead of a building permit);
- abuses below the 2% tolerance threshold (art. 34-bis, paragraph 1 of Presidential Decree 380/2001);
- abuses exceeding the 2% tolerance threshold.
If the building abuse derives only from the fact of having used a different type of authorisation measure from the one provided for that intervention, it will still be possible to benefit provisionally from the Superbonus, provided that the amnesty is requested: to this end, taxpayers must send a copy of the application for the amnesty permit and, within six months of its notification, a copy of the final amnesty measure to the Revenue Agency.
In order to avoid locking in all those situations with minimal abuses, the tax bonus benefit is granted if the irregularities are below the 2% tolerance threshold in height, detachments, cubage or covered area, in compliance with the destinations and alignments. In this particular case, a declaration in lieu of affidavit stating the date of commencement of works and the type of works or a declaration of excess limited to 2% is required in order to benefit from the relief.
If, on the other hand, you intend to apply for the bonus for buildings in which abuses exceed the 2% tolerance threshold, you will have to restore the situation of legitimacy by remedying the pre-existing abuses through an application for amnesty, demolishing the unauthorised building or paying a fine.
The severity of the general principle is partially remedied by Ministerial Circular no. 41714/2003, which admits the possibility of carrying out building works even in the presence of building abuses, provided that an amnesty has been applied for before the new works. While waiting for the urban amnesty, it is still possible to start the work and benefit from the bonus, but the client bears the risk that the amnesty will be unsuccessful.
Finally, a special case is represented by abuses affecting the internal units of a condominium building. Paragraph 13-ter of Article 119 of Decree-Law 34/2020 provides that the affidavits of the technicians concerning the lawful status of multi-family buildings refer only to the common parts: therefore, urban planning irregularities on the interior units will not affect the condominium’s possibility to benefit from the superbonus for works on the common parts.