Building irregularities may hinder access to possible benefits

Question. In a condominium where some flats, due to internal works, do not have cadastral urban conformity, condominium works are to be carried out on the building façade, taking advantage of tax deductions. The question arises as to whether condominium owners whose flats are in order and do not have any discrepancies can be prevented from accessing tax benefits for condominium works due to irregularities in some flats.

Answer. Considering that the specific issue has not yet been examined by the official practice of the Inland Revenue, it should be noted that, for the superbonus pursuant to Article 119 of Law Decree 34/2020, the problem does not arise, since, according to paragraph 13-ter of the aforementioned article, the interventions admitted to the superbonus, excluding those involving the demolition and reconstruction of buildings, do not require a certificate of the legitimate state, so that any abuses on private or common parts are not relevant. Outside of the superbonus pursuant to Article 119 of Decree-Law 34/2020, on the other hand, the principle applies that interventions carried out in the presence of building irregularities cannot benefit from tax relief. In fact, according to Article 49, paragraph 1, of Presidential Decree 380/2001, 'unauthorised interventions carried out in the absence of a title or in contrast with the same, or on the basis of a title that was subsequently cancelled, do not benefit from the tax benefits provided for by the regulations in force, nor from contributions or other benefits of the State or public bodies'. That being said, the answer to the question depends on the facility to be used. In any case, remaining outside the superbonus sphere (as seems to be the case in the case posed by the question), it is advisable to prudentially acquire the building-cadastral conformity for the building as a whole (private and common parts), also considering the fact that, under Article 1117 of the Civil Code the definition of a common part includes not only the shell, stairs, foundations, roof, landings, but also certain elements of the building units constituting the condominium, including the main walls, pillars and load-bearing beams (which could also cover the facades). Precisely for this reason, Article1122 of the Civil Code provides that, 'in the building unit owned by him, or in the parts normally intended for common use, which have been assigned to exclusive ownership or intended for individual use, the condominium owner may not carry out works that cause damage to the common parts or determine prejudice to the stability, safety or architectural decorum of the building'. In essence, in the case described by the question, the non-compliance of some flats could jeopardise the right to the relief for works (not from superbonus) on the common condominium parts even for owners whose homes are compliant.

The question is taken from the insert L'Esperto risponde on newsstands with Il Sole 24 Ore of Monday 24 June.

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