When the house doesn’t match the drawings: stato legittimo, tolerances and the 36-bis amnesty for foreign buyers

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A recent court case shows the scale involved. In February 2026 the Regional Administrative Court of Apulia (TAR Puglia, judgment no. 176 of 9 February 2026) examined a flat created by splitting a larger flat and a garage. The ceilings measured between 2.64 and 2.69 m against a legal minimum of 2.70 m. The town hall had cancelled the works notice after the fact; the court reversed it, holding that the shortfall was within the 2% tolerance and that the town had not investigated properly. As we will see, the arithmetic is not quite that simple.

Centimetres, then. But the same question applies to every resale house you look at: do the real measurements match the permit, by how much do they differ, and who fixes it? This guide follows the order in which an Italian surveyor checks a house before the deed. It is general guidance; the opinion on a specific house comes from a qualified Italian professional who has seen its file.

The Italian words you will hear

How lawful status is proven

Article 9-bis(1-bis) of the Consolidated Building Act (D.P.R. 380/2001) lists the documents that establish lawful status. Since Salva Casa, any of these will do:

• the permit under which the building was built;
• the permit for the most recent works covering the whole building or unit, provided that the authority checked the earlier permits when it issued it;
• permits issued under an amnesty (condono) or retrospective permission, plus any later permits.

The practical gain is the second line: a recent full renovation permit may save you from tracing every permit back to 1965. The catch is the condition: the file must show that the town hall checked the earlier permits. Without that check, the recent permit is not enough.

Old buildings have their own route. For buildings started before 1 September 1967 the seller makes a sworn statement in the deed (art. 40(2) Law 47/1985), and where no permit was required, or a permit existed but cannot be found, lawful status rests on the original land-registry records or other evidence such as photographs, maps and archive documents (art. 9-bis(1-bis)). Commentators warn that land-registry records alone are usually not enough. What matters for you is everything done to the building since.

Step one: get the town hall file

Sellers rarely hold all their permits. The file is requested from the town hall’s planning archive or one-stop building desk (Sportello unico per l’edilizia, SUE) through an access-to-records request (accesso agli atti). Each town sets its own form and fees. Brescia, for example, set new search-and-inspection fees for building files by management decision no. 1683 of 30 June 2026, applying from 15 July 2026, with requests filed through its online SUE portal.

For a foreign buyer, two practical points:

• Who can ask. The owner can request the file; your surveyor will usually need the seller’s written authorisation (delega). Make that authorisation a condition before you sign anything binding. No file, no preliminary contract.
• Who reads it. The file is in Italian, often handwritten for older permits, and the drawings matter more than the decisions. Your surveyor, not your estate agent, should read it, and you can ask for a short written report in English.

Step two: compare the house with the permit

The surveyor measures and compares with the last approved drawings: heights, areas, distances, openings, internal layout. Each discrepancy lands in one of three boxes.

Box 1: within tolerance (art. 34-bis)

A discrepancy within a set percentage of the permitted measurement is not a breach. The basic tolerance is 2%. For works completed by 24 May 2024, Salva Casa added a sliding scale by the unit’s usable floor area as permitted:

Works completed after 24 May 2024 get 2%.

Worked example: a 1995 house with 140 m² of permitted usable area gets 4%, so a 10.00 m wall on the drawings may measure up to 10.40 m. A 52 m² flat from the same year gets 6%: a 4.00 × 5.00 m living room is fine up to 4.24 × 5.30 m.

Now the Apulian ceiling. Two per cent of 2.70 m is 5.4 cm, so the strict limit is 2.646 m. Reports of the judgment describe heights "between 2.64 and 2.69" as all within tolerance; at 2.64 the strict arithmetic does not quite work, and the answer turns on how the expert measured and rounded. Ask your surveyor for measurements to the centimetre and the method used.

Tolerances do not cover:

• anything built without a permit: no permit, no tolerance (TAR Lazio no. 2054/2026);
• several discrepancies added together beyond the percentage: the Council of State (no. 5542/2026) counts them jointly;
• extensions in disguise: added volumes, mezzanines, splitting a unit, changing façades;
• execution tolerances on listed buildings protected under the Cultural Heritage Code.

Tolerances must be certified in writing by a qualified technician, in the next works notice or in a statement attached to the deed. Ask for that statement before completion, signed, with the measurements.

Box 2: partial discrepancy that can be legalised (art. 36-bis)

Beyond tolerance but within the shape of the permit: a window moved on the façade, a deeper balcony, a footprint slightly off the drawings.

Internal changes without structural work, such as a moved partition or a box room turned into a study, are a separate case: they normally fall under the simple works notice called CILA (art. 6-bis D.P.R. 380/2001) and, if it was never filed, can be regularised with a late notice and a €1,000 penalty, cut by two thirds if the notice is filed voluntarily while works are still in progress (art. 6-bis(5)). Salva Casa created a dedicated route, art. 36-bis, for partial discrepancies and "essential variations".

The Constitutional Court, in judgment no. 86/2026 (filed 21 May 2026, on a Sardinian building law), reaffirmed the strict nature of art. 36; according to commentators, the simplified 36-bis route does not extend to works with no permit at all or in total breach of one. Separately, the Council of State (no. 1394/2025) held that applications filed before the 2024 decree do not benefit from the new rules.

Cost. For works that needed a SCIA notice, the penalty ranges from €1,032 to €10,328 depending on the increase in value assessed by the Revenue Agency; where both compliance tests are fully met the same paragraph sets €516–5,164 (as also reported in the town of Pisa’s guidance). For works that needed a full building permit the formula is different and depends on the building contribution; ask the town hall’s technical office. Add the surveyor’s fee, town hall charges, any corrective works and, for you, time: 45 days of silence is the floor, the office’s real workload is the ceiling.

Box 3: cannot be legalised

Extra volume where today’s plan allows nothing more, an added floor that fails current planning rules, a building inside a road or cemetery buffer zone: no tolerance, and 36-bis does not help because current planning compliance is missing. The options are demolition or, within legal limits, a fine in lieu. Liability passes with ownership. Price the house as one that will have to be cut back.

Land registry and town hall are different systems

At the deed the seller declares that the land-registry data and floor plan (planimetria catastale) match the property as it is (art. 29(1-bis) Law 52/1985, added by D.L. 78/2010). Without that declaration the deed is void; the Court of Cassation (no. 27531/2025) has said this applies only when the declaration is missing altogether, and paragraph 1-ter allows the deed to be confirmed.

A matching cadastral plan proves nothing about planning compliance. The land registry records what exists, not whether it was authorised. An extra room built without a permit is often "regularised" at the land registry with a DOCFA filing: the cadastral plan shows it, the town hall file does not. That mismatch is the first thing your surveyor should look for.

What the notary checks, and what not

For buildings after 17 March 1985, art. 46 D.P.R. 380/2001 (and, before that, arts. 17 and 40 Law 47/1985) make a deed void if it does not state the details of the building permit or amnesty. The Court of Cassation’s joint chambers (judgment no. 8230 of 22 March 2019) held that this is a formal requirement: the deed is valid if it cites a genuine permit for the property, even if the house departs from it.

In plain terms, the notary checks that the permit references exist and are real. The notary does not measure rooms. A valid deed can transfer a house with a breach, and many foreign buyers assume the opposite. Your protection is the preliminary contract (compromesso): seller’s statements on lawful status, a duty to provide the file, a condition that tolerances are certified and discrepancies legalised before the deed, or a price reduction equal to the estimated cost. See our guide to the preliminary contract.

Mortgages and remote purchases

If you are borrowing from an Italian bank, the bank’s valuer will look at planning conformity too, and a discrepancy can delay or reduce the loan. Tell the bank early and give the valuer your surveyor’s report.

If you are buying from abroad, you can give a power of attorney (procura) to someone in Italy to sign the deed, but not to read the file for you in a language you don’t understand. Budget for a surveyor’s report and, if you need it, a translation of its conclusions. The power of attorney, if signed outside Italy, needs a notary and an apostille, and usually a translation.

A realistic timeline

1. Before any binding offer: seller’s authorisation, access request, surveyor’s site check (a few weeks, depending on the town).
2. Preliminary contract: clauses on lawful status and legalisation; deed date that leaves room for the town hall.
3. Between contract and deed: 36-bis application or tolerance statement; cadastral update if needed.
4. Deed: permit references, cadastral conformity declaration, tolerance statement attached.

Lawful status can only be rebuilt from the town hall file. The TerrenoCheck report gives the context to read that file against: planning zone, landscape constraints and buffer zones, flood and landslide hazard, and dated aerial photos, so you can see which zone constraints your surveyor will have to take into account. €29 in one language, €39 in English and Italian. Find the property on the map → · See a sample report

When the survey finds a problem: negotiating with the seller

A discrepancy changes the negotiation; it does not have to end it. There are four practical routes.

1. The seller regularises before the deed. This is the clean solution for Box 1 and Box 2: the seller’s surveyor files the application and the permit is delivered before signing. The preliminary contract (compromesso) states who pays the fine, fees and professional charges, and a long-stop date for the deed.
2. A conditional preliminary contract. If legalisation will take time, the sale can be made conditional on the amnesty permit being issued by a date. If it is not, your deposit (caparra) comes back. Have the clause drafted by the notary or your lawyer; the wording matters more than the size of the deposit.
3. A lower price. If you will regularise after completion, the price should reflect your surveyor’s estimate (fine, fees, any works to restore the original state) plus the risk that the town hall asks for more. Doing this from abroad means giving your surveyor a power of attorney to deal with the town hall.
4. Walking away. For Box 3 no discount compensates: a discrepancy that cannot be legalised can lead to a demolition order, and a bank valuer who reports non-compliance can stop the mortgage.

Whatever you choose, ask your surveyor to state in writing which box each discrepancy falls into. That report is what you negotiate with, and what the contract clause refers to.