Art. 32 del Decree-Law 31 May 2021, n. 77 (the so-called Simplification Decree) has completely replaced paragraph 13-ter of art. 119 of Decree-law 19 May 2020, n. 34 (so-called Relaunch Decree) providing for a “special discipline” for the building interventions who access the superbonus 110%.
Super bonus 110%: the special discipline
In particular, it was envisaged that interventions that access tax deductions of 110%, without demolition and reconstruction, must be considered Extraordinary maintenance as defined by art. 3, paragraph 1, letter b) of DPR n. 380/2001 (Consolidated Building Act). But not only that, because for these interventions it is foreseen that the construction site can be started upon presentation to the Unified Building Office of one sworn communication of commencement of works (WHAT) in which the interested party (not the technician!) does not have to fill in the section relating to town planning compliance
of the property.
In the CILA nothing must be indicated about it legitimate state referred to in art. 9-bis, paragraph 1-bis of the Consolidated Building Act. We remind you that legitimate status means “the one established by the qualifying title that provided for its construction or that legitimized it and by the one that governed the last building intervention that affected the entire property or real estate unit, integrated with any subsequent titles that enabled interventions partial“.
The tax law is separated from the building law
The new paragraph 13-ter defines for the first time a net
separation between tax and construction legislation. It is, in fact, foreseen that the forfeiture of the tax benefits provided for byart. 49 of
Consolidated Building Act no longer operates in the presence of
building abuses (attention, we always refer to buildings built in compliance with the rules on which subsequent building abuses may have been carried out and not to buildings without a qualification that provided for their construction) but only in some particular cases:
- failure to present the CILA;
- interventions carried out in deviation from CILA;
- absence of the attestation of the details of the qualification that provided for the construction of the property subject to intervention or of the provision that allowed its legitimacy or that certified its construction (in case this was completed on a date prior to the 1st September 1967);
- non-correspondence to the truth of the certifications provided for by art. 119, paragraph 14 of the Relaunch Decree.
Superbonus 110% and verification of town planning compliance
The (clumsy) intent of this change is accelerate the start-up of construction sites bypassing (perhaps!) the problem of
verification of urban planning-building compliance. But, as always, you need to be very careful and check in
systemic perspective the effects of this change.
Untying the use of the 110% bonus to the possibility that more or less important building abuses may exist can generate at least two big problems.
The first is related toself-report by the interested party. In fact, the law provides that the interventions carried out must be compliant with CILA, under penalty of forfeiture of the tax relief. This means that in the drawings the technician will have to accurately represent the state of affairs and for a Unico Edilizia that wanted to check all the CILA submitted for the superbonus, it would be very easy to verify the presence of any abuses. In this case, although the CILA cannot be denied and despite the fact that the right to tax deduction is not lost, as indicated in the last sentence of the new paragraph 13-ter “Any evaluation of the legitimacy of the property subject to intervention remains unaffected“. The interested party may, therefore, be sanctioned as required by the Consolidated Building Act and, in the case of checks during construction, the construction site could be suspended (watch out for contracts with the company!).
Superbonus 110%: the certified notification of viability
Another important aspect concerns theusability
that since 2016, with Legislative Decree no. 222/2016, is certified by a qualified technician who also verifies:
- the existence of the conditions of safety, hygiene, healthiness, energy saving of the buildings and of the systems installed in them;
- the conformity of the work to the project presented.
The certified signaling of viability
(SCA) must be submitted within fifteen days from the completion of the finishing works of the intervention, for the following interventions:
- new buildings;
- total or partial reconstructions or elevations;
- interventions on existing buildings that may affect the conditions of safety, hygiene, healthiness, energy saving of the buildings and of the systems installed in them.
This means that for any 110% superbonus intervention, the SCA must be submitted at the end of the works. Failure to submit the SCA by the deadline will result in the application of a pecuniary administrative sanction ranging from 77 to 464 euros.
At this point it is necessary to be very careful because the jurisprudence has distinguished the two cases of:
- lack of (substantial) usability;
- lack of certified (formal) accessibility report.
The unusability and therefore the eviction order operate only in the absence of the substantial requirements provided for by the law. Going into detail, the causes of inability to use may concern the following conditions:
- safety, structural, plant engineering or fire protection;
- urban planning-building, in the event of non-compliance between the state carried out and the project presented / authorized.
It is clear that CILA is not an instance that can heal any present and detectable abuses. Precisely for this reason, any discrepancy between the state of the places and the last qualifying title is an impediment to the presentation of the SCA.
CILA and certified notification of viability: the doubt
The story, however, does not end there. The art. 24, paragraph 2 of the Consolidated Building Act states:
“2. For the purposes of practicability, within fifteen days from the completion of the finishing works of the intervention, the owner of the permission to build, or the person who submitted the certified reporting of the start of business, or their successors or successors in title, submit the certified report to the one-stop shop for construction, for the following interventions:
a) new buildings;
b) reconstructions or elevations, total or partial;
c) interventions on existing buildings that may affect the conditions referred to in paragraph 1.“.
This paragraph 2 considers three categories of subjects obliged to submit the SCA:
- the building permit holder, what can be:
- ordinary (Article 10 of the TEU);
- by way of derogation (Article 14 of the TEU);
- agreement (Article 28-bis of the TEU);
- the subject who has submitted the certified report of the start of business, what can be:
- ordinary (Article 22 of the TEU);
- alternative to building permit (Article 23 of the TEU).
The sworn commencement notice is not mentioned (CILA). Which could be a mere oversight of the legislator. Indeed, it is necessary to admit that the interventions that fall within the CILA universe undoubtedly also include those that may affect the conditions referred to in art. 24, paragraph 1 of the TEU.
It should also be noted that although theart. 6-to
of Consolidated Building Act (which provided for the CILA) was introduced byart. 3 of Legislative Decree n. 222/2016, the communication of commencement of works sworn by a technician for extraordinary maintenance interventions, it was foreseen for the first time byart. 5 of the Decree-Law of 25 March 2010, n. 40. In the previous version of art. 6 of the TEU, paragraph 4 provided:
Limited to the interventions referred to in paragraph 2, letter a), the interested party, together with the communication of the start of the works, sends to the municipal administration a technical report with a certain date and accompanied by the appropriate design documents, signed by a qualified technician , who declares in advance that he has no dependency relations with the company or with the client and who asserts, under his own responsibility, that the works comply with the approved planning instruments and the building regulations in force and that for them the state and regional does not provide for the issue of a qualification.
Then in 2016, the Legislative Decree no. 222/2016 amended art. 6 an ad hoc article is envisaged for CILA (precisely 6-bis).
L’art. 24 on the SCA it was also introduced by Legislative Decree no. 222/2016.
It is at least strange that the legislator forgot to mention the CILA. Which “could“to mean that the SCA should not be presented in the case of interventions that go to CILA, but the conditional is always a must and the interpretation by the SUEs should be verified where it is working (in spite of simplification!). Or, maybe , in the convergence of Legislative Decree No. 77/2021 into law, they will clarify the need for SCA for superbonus interventions.
At this point it is easy to understand that before starting any 110% superbonus construction site and presenting a CILA that could potentially have the effects of a bomb, it is always better to check the legitimate state of the property.