Retrospective consent and building breaches

The correct sequence starts from the nature of what is to be regularised, not from the desired outcome. The order of the steps determines the outcome of the application.

Work carried out with no consent at all falls under a different regime from work carried out under a consent but departing from it. Within non conformity the code distinguishes material variation from partial non conformity, and the distinction determines the applicable sanctions regime. A further category comprises departures of limited extent which do not amount to non conformity and require no regularisation at all.

The first technical question is therefore one of classification: what was built, under what consent, and in what relation to that consent. Only then is the instrument chosen.

Regime	Essential condition	Effect
Tolleranze costruttive	Departure of limited extent within the statutory limits	No regularisation needed, certification by the professional
Late CILA	Work eligible for a CILA carried out without the notification	Regularisation with a financial penalty
Retrospective compliance, article 36	Dual compliance with the rules in force when built and with those in force now	Issue of a retrospective consent
Retrospective compliance, article 36-bis	Introduced by Salva Casa for partial non conformity, with its own conditions	Issue of a retrospective consent
Monetary penalty in lieu of demolition	Reinstatement impossible without prejudice to the lawful part	Financial penalty replacing demolition

The table is a map, not a selection rule. The conditions for each regime are set by the provisions establishing it and are covered in the dedicated pages.

Article 36 of the code makes the issue of a retrospective consent conditional on the work complying with the planning and building rules in force both when it was carried out and when the application is filed. Compliance must be established against two distinct moments.

This requirement is the real practical obstacle to most regularisations, and not for technical reasons but because planning instruments change over time. Work that complied when it was built may not comply today, and the reverse also occurs, and in both cases dual compliance fails.

Decree Law 69 of 2024, converted by Law 105 of 2024, intervened in this arrangement by introducing article 36-bis, which governs a route to retrospective compliance with conditions differing from those of article 36 for certain categories of non conformity. The scope of that change and its boundaries are the subject of the dedicated page, and are still being clarified by case law.

A property with non conformities does not present one breach but a set of non conformities, each with its own history and its own classification. Each has its own history and its own classification.

The distinction matters because the regimes apply not to the property but to the individual non conformities. Within a single unit it is entirely ordinary to find, at the same time, departures falling within tolerances and requiring nothing, departures regularisable by late notification, departures requiring a retrospective compliance assessment and departures that cannot be regularised at all.

Treating the set as a single block produces two mirror errors. The first is overstatement, leading to an onerous procedure being opened for situations that did not require one. The second is understatement, leading to the file being closed while leaving out the most problematic departure, the one that will resurface.

The operational consequence is that the list of non conformities must be built before the strategy, in tabular form, each with its description, its presumed date of construction, the relevant consent and the proposed classification. Tabular form is what supports the comparison.

Three recurring expectations find no support in the rules. They must be corrected before framing the application.

Regularisation does not make lawful work that is substantively unlawful. If the work conflicts with planning rules, none of the available regimes has the effect of making it approvable.

Regularisation does not extinguish the liability of a professional who certified a non conformity, which follows its own course. That liability follows a separate route.

Regularisation is not retroactive as regards incentives and reliefs claimed on the basis of a declared state differing from the real one. The regime governing those benefits belongs to tax law and must be assessed separately.

Professional practice is best served by proceeding in four steps, in order. Skipping the first two is the most expensive error.

A survey of the existing condition, complete and measured, without filtering out apparent non conformities. The survey precedes any assessment.

Documentary reconstruction of lawful status, searching for consents in the competent archives. The archive search is often the longest phase.

A comparison of the two, non conformity by non conformity, classifying each in its corresponding category. The comparison must be documented rather than summarised.

Selection of the instrument for each classified non conformity, checking the conditions before any economic assessment. Checking the conditions precedes any financial assessment.

Skipping the first two steps in order to reach the application sooner is the costliest error in this field, because it produces incomplete filings on misclassified situations. The application then rests on an incomplete picture.

The 2024 changes intervened in an area of shared competence, with non uniform regional reception: some regions have adopted their own rules, and administrative case law continues to define the boundaries of the mechanisms introduced. Regional adoption has not been uniform.

None of the guidance in this branch can be applied without checking the regional legislation in force, the municipal building regulation and the date on which the source consulted was last updated. The check is an obligatory step and not an optional one.