A building violation is not always the same as a criminal offense, but it can simultaneously trigger a problem with the Municipality and criminal proceedings. If you have received a report, a demolition order, an investigation notice or discover a discrepancy while selling or inheriting a property in Milan, it is understandable to wonder what risks you face, whether the work can be regularized and who is responsible for work carried out by others.
In this guide I will explain the distinctions that truly matter: the difference between a minor irregularity and work requiring a building permit, the relationship between regularization and criminal offense, the consequences of a demolition injunction and the delicate case of an inherited property. We will also see why paying a penalty or submitting an application does not, by itself, close every issue.
When a building violation can have criminal consequences
Building offenses mainly concern work carried out without the required permit, in total divergence from the obtained permit or in contrast with urban planning regulations. Article 44 of Presidential Decree no. 380 of 2001 provides for different criminal consequences depending on the severity of the violation: knowing that work is "divergent" is therefore not enough to understand the specific allegation.
The first question is what work was carried out. A different use of spaces, the stable enclosure of a balcony, an increase in volume, the modification of structural elements or the construction of a structure can fall under very different regimes. The original permit also matters: building permit, SCIA, CILA or the absence of any paperwork. The description used in a real estate listing or private appraisal does not replace this verification.
Administrative and criminal proceedings remain distinct. The Municipality can challenge the urban-building violation and order restoration; the Prosecutor's Office can instead ascertain personal liability for the misdemeanor. The same work can therefore have effects on both levels. The municipal order does not automatically prove a person's criminal guilt, but it should not be treated as an act without consequences.
When the work involves a listed asset, landscape, building safety or anti-seismic regulations, additional authorizations and interests come into play. Building regularization does not automatically eliminate every other violation: urban planning, landscape and structural rules have their own prerequisites and cannot be confused.
Discrepancies, tolerances and truly illegal works
Not every deviation from the project is a violation to be demolished. The Consolidated Act on Building distinguishes partial discrepancies from works carried out without a permit, in total divergence or with essential variations. The distinction affects both the type of municipal measure and the possibilities of regularization.
There are also construction and executive tolerances governed by Article 34-bis of Presidential Decree no. 380 of 2001. They concern, within the limits and conditions provided by the rule, certain dimensional divergences or minor irregularities accumulated during the execution of the work. Tolerance is not a general regularization: it does not render irrelevant a modification that violates urban planning rules, compromises habitability or requires specific assessments for constraints and safety.
To understand whether a discrepancy falls within a tolerance, one must start from the lawful status of the property, meaning the reconstruction of the permits that authorized its construction and transformations, together with any subsequent permits that verified the previous ones. The useful comparison is not just between the cadastral floor plan and the current situation: the land registry describes tax data, it does not grant building legality by itself.
This distinction is particularly important in older buildings. The fact that a room or a veranda has existed for many years does not prove, by itself, that it was built with a valid permit. Similarly, a historical work is not necessarily irregular: licenses, concessions, amnesties or regularization procedures may exist that radically change the picture.
Compliance assessment: which regularization can be requested
Ordinary regularization does not serve to make lawful what remains contrary to applicable rules. For works carried out without a building permit, or in total divergence, Article 36 of Presidential Decree no. 380 of 2001 requires so-called double compliance: the work must comply with urban planning and building regulations both at the time of construction and at the time of the application.
This criterion explains a frequent misunderstanding. If today the plan or building regulations allow work that was not permitted when it was carried out, current compliance alone is not enough for the regularization provided for by Article 36. The rules reformed in 2024 maintained this framework for the most serious violations, as shown by the coordinated text of Decree-Law no. 69 of 2024 and Law no. 105 of 2024, published in the Official Gazette of 27 July 2024.
A different regime exists for certain minor discrepancies. Article 36-bis concerns, in particular, partial discrepancies from the building permit or SCIA, works carried out without or in divergence from the SCIA in cases provided by law and, following the conversion of Decree-Law no. 69 of 2024, also essential variations. The criterion does not coincide with the double compliance of Article 36: what matters are the urban planning rules in force at the time of the application and the requirements of the building rules in force when the work was carried out.
This different rule, however, does not authorize choosing the most favorable procedure freely. First comes the correct classification of the work: a work in total divergence does not become partial just because it is contained in size or because the current owner did not carry it out. Constraints, sector authorizations and construction regulations may also impose additional conditions.
The application for regularization must also be placed in the correct procedural moment. For Article 36, the law refers to the terms linked to administrative penalties; for Article 36-bis, the application must arrive within the limits provided for cases of partial divergence and before the imposition of the relative penalties. Waiting without verifying the received act can restrict available options.
Demolition order, acquisition by the Municipality and penalties
The demolition injunction requires immediate attention. For works carried out without a permit, in total divergence or with essential variations, Article 31 of Presidential Decree no. 380 of 2001 provides that the municipal manager or officer enjoins removal or demolition to the owner and the person responsible for the violation.
If restoration does not take place within the term indicated by the law, normally ninety days from the injunction, free acquisition of the asset, the footprint area and the additional area necessary within regulatory limits into municipal assets may take place. The measure ascertaining non-compliance, after the envisaged notification, allows entry into possession and transcription in the real estate registers. It is therefore not prudent to consider the order as a simple negotiable request.
Acquisition does not necessarily mean the work remains standing. The Municipality may order demolition at the expense of those responsible, while the preservation of the property requires a resolution ascertaining a prevailing public interest and compliance with urban planning, cultural, landscape, environmental and hydrogeological limits. The private interest in preserving the property does not coincide with the public interest required by the rule.
A specific aspect concerns mortgage creditors extraneous to the violation. The Constitutional Court, with judgment no. 160 of 2024, declared Article 31, paragraph 3, unconstitutional to the extent that it did not safeguard the mortgage registered before the transcription of the ascertainment of non-compliance, if the creditor is not responsible for the violation. The decision can be consulted in the pronouncement sheet of judgment no. 160/2024 of the Constitutional Court. This protection concerns the creditor under the indicated conditions, and does not cancel or automatically suspend the order addressed to the owner or the person responsible for the work.
Regularization and defense in criminal proceedings
Submitting an application is not the same as obtaining regularization. In criminal proceedings, it is essential to distinguish between the application, the actual issuance of the permit and the nature of individual allegations. Article 45 of Presidential Decree no. 380 of 2001 links the suspension of criminal action to regularization under Article 36 until the administrative procedure is concluded and attributes an extinguishing effect for urban planning misdemeanors to the issuance of the permit in regularization.
This effect has a precise boundary. Issuance in regularization does not extinguish every possible offense connected to the work, because offenses related, for example, to landscape protection or seismic regulations may still exist. The original text of Presidential Decree no. 380 of 2001, with Articles 44 and 45, is available in the publication of the Consolidated Act on Building in the Official Gazette.
Criminal defense does not consist in presuming that the current owner is responsible for the work. Criminal liability is personal: execution date, role of the person who commissioned or directed the work, available permits, municipal acts and the content of the charge are different elements, each with its own weight. The purchase of the property can have administrative and financial effects without proving, by itself, that the buyer committed the offense.
In the presence of an investigation notice or a criminal decree, it is important not to confuse technical regularization with the defensive choice in the proceedings. The two issues must be coordinated, not overlapped: an incomplete building file may not resolve the criminal side, while a criminal charge requires verifying its prerequisites without passively awaiting the outcome of every administrative interaction.
Inherited property: who is liable for the prior violation
Inheriting a property does not automatically transfer the criminal liability of the deceased. Criminal liabilities are personal and do not pass to heirs. The problem of the property is different: whoever takes over ownership may find themselves facing illegal work that is still existing, an order already notified or paperwork requiring prompt decisions.
The heir must distinguish between the origin of the violation and the obligations arising from the current availability of the asset. Succession does not make the works compliant. If the discrepancy can be regularized, the current owner may have grounds to promote the procedure provided by law; if it cannot, the consequences of the municipal measure and the concrete possibility of restoration must be considered.
Chronology matters greatly. An injunction received by the previous owner, an ascertainment of non-compliance already transcribed or a pending regularization application produce different issues. The presence of multiple heirs also requires understanding who can act on the property and with what powers. Relying on family information is not enough: building permits, administrative acts and documentation placing the works in time are necessary.
To prepare a useful consultation, gather the received act, the purchase deed or declaration of succession, available building permits, floor plans, any dated photographs and communications from the Municipality into a single file. The sequence of documents clarifies the problem: it allows distinguishing what was authorized, what was built and what the administration has already contested.
What choices to consider before intervening on the property
The first choice is to avoid makeshift repair work. Demolishing or modifying a work without understanding the content of the order, the possibility of regularization and any safety requirements can complicate the reconstruction of facts or create further discrepancies. Restoration may be necessary, but it must correspond to the situation actually contested.
A first alternative is regularization, when the work falls within the scope of Articles 36 or 36-bis and the requirements are met. Regularization requires a permit issued or formed according to law, not an informal declaration or the mere payment of sums. A second alternative is the voluntary restoration of the non-compliant work, if the prerequisites to regularize it do not exist or if the measure requires removal.
If you believe that the municipal act contains errors, poorly identifies the works or applies an irrelevant rule, the challenge must be structured on the actual grounds of the act. There is no single valid response for every ordinance: the type of intervention, date, applicable rule, possible constraint and the moment the measure was notified are decisive.
When a criminal file also exists, let us review with the staff how to keep the two paths orderly without attributing effects to the administrative procedure that it does not have. Acting with consistent documents avoids unnecessary contradictions between statements made to the Municipality, technical reconstruction and defense in the proceedings.
Frequently asked questions
Can I sell a property with a building violation?
The sale requires particular caution, because for buildings constructed after 17 March 1985, deeds between living persons must state the details of the building permit or regularization permit in the cases indicated by Article 46 of Presidential Decree no. 380 of 2001. The possibility of executing the deed and its validity depend on the concrete situation; a discrepancy must neither be hidden nor reduced to cadastral data.
Can the Municipality order demolition even if I did not build it?
Yes, the order can also concern the current owner, because it aims at the urban planning restoration of the property. This is not equivalent to automatically attributing to you the offense committed by others: criminal liability remains personal. However, it is necessary to immediately verify the content of the ordinance, the nature of the work, prior acts and any prerequisites for regularization.
Does regularization always cancel the building offense?
No, submitting the application is not enough. The issuance of the regularization permit can extinguish urban planning misdemeanors within the limits of Article 45 of Presidential Decree no. 380 of 2001. The effect does not automatically extend to offenses connected to different interests, such as those that may concern landscape constraints or rules on buildings in seismic zones.
Can I regularize a work that would be permitted today?
It depends on the category of the discrepancy. For violations included in Article 36, compliance is required both at the time of construction and at the time of the application. For hypotheses governed by Article 36-bis, the criterion is different, but building requirements referred to the time of the work and compliance with other applicable conditions remain necessary.
What happens if I do not comply with the demolition order?
Non-compliance can lead to the free acquisition of the asset into municipal assets, pursuant to Article 31 of the Consolidated Act on Building, after the expiry of the term provided by the injunction. Entry into possession, transcription in the real estate registers and demolition at the expense of those responsible may follow. For this reason, it is necessary to promptly distinguish regularization, restoration and challenge of the act.
Essential references
For the rules on regularizations, discrepancies and the modifications introduced in 2024, you can consult the coordinated text of Decree-Law no. 69 of 2024 converted by Law no. 105 of 2024. For general rules on building penalties, criminal action and declarations in real estate deeds, Presidential Decree no. 380 of 2001 published in the Official Gazette remains useful.
If you have received an act or need to decide how to intervene on a property, you can contact me with the documentation already available: we can clarify which facts are decisive and which path is compatible with the measure received.