Salva casa, the municipality's stop to abuses blocks new amnesties

The municipality's objections to an abuse freeze the situation of properties. And they make it impossible to apply to the past the amnesties that came with the Salva casa. This important principle, whichlimits the retroactivity of decree no. 69/2024, was affirmed by the Council of State in ruling no. 2771/2025 and is gradually being consolidated: the Council of State itself, in ruling no. 8542/2024, went in exactly the same direction.

The decision concerns the topic of tolerances, an institute whose perimeter has been expanded very substantially by the Salva casa. The concept is that, within certain limits, it is not considered a violation to deviate from the authorised limits of certain parameters, such as height, detachments, cubage, covered area. If, however, before the measure that introduced new amnesties in our system, tolerances were limited to 2%, decree 69 created a new, more elastic mechanism, which allows up to 6% for building units with a usable surface area of less than 60 square metres.

This repartition applies to all deviations made by 24 May 2024. The contested abuse in the case examined by the Council of State was just above the 2 per cent threshold. Therefore, it was not tolerable under the old system, but became potentially legitimate with the extension introduced by the Salva casa. Specifically, it concerned a property with a surface area between 100 and 300 square metres, thus with a 4% tolerance, two points more than before.

According to the judges, however, the new amnesties cannot change the cards of an abuse that has already been contested by the municipality and then challenged. The judgement says: 'The provisions introduced by the Salva casa decreedo not apply retroactively to the measures previously challenged and therefore have no influence on the outcome of the present judgement. The only alternative in such a case is for the administration itself to take action, for reasons of fairness, by aligning itself with the rules currently in force: "The municipality," the Council of State goes on to say, "has the possibility of reviewing its decisions, re-evaluating the original application in light of the new provisions introduced by the save house decree".

Thislimitation on retroactivity is explained, in another passage of the judgment, by observing that "the scrutiny of the legitimacy of the administrative measure can only take place with reference to the factual and legal ruling that the administration was faced with at the time of its adoption". The application of the Salva casa to the past, in this way, encounters strong limits: the two extra tolerance points cannot be claimed.