Inheritance divisions and illegal constructions

When it comes to inheritance, we imagine a linear path: reconstruct the estate, evaluate the assets, and divide them among the heirs. The case addressed by the Court of Cassation with Order No. 21743/2026 demonstrates how a division of an inheritance can become a complex legal issue.

It all stems from a 2014 mediation agreement, in which the co-heirs had established criteria for evaluating the lots and a possible adjustment to be calculated based on the expert opinions of the parties. A seemingly clear agreement, which over the years has, however, clashed with disputes over the amount of the adjustment, the water easement, and, above all, the presence of illegal structures within the estate.

The Court of Appeal and the Exclusion of the Structures

The Court of Appeal of Genoa had chosen to exclude the structures from the scope of the division, arguing that the agreement only concerned the land and that, since they were hereditary assets, the nullity provided for inter vivos deeds on irregular properties did not apply.

This argument seemed to simplify the matter, but ended up ignoring the fact that the division of an estate is an inter vivos deed, and as such must comply with the law. Urban planning.

The Supreme Court reverses the perspective

The Supreme Court intervenes decisively, recalling a principle already expressed by the United Sections: "Deeds of dissolution of joint inheritance are subject to the penalty of nullity provided for by art. 46 of Presidential Decree 380/2001..."

This is a step that completely changes the perspective. The Supreme Court clarifies that the division of an inheritance cannot ignore the presence of illegal buildings, because the division is a transfer of real rights and, as such, requires verification of building regulations. It does not matter whether the property has passed to the heirs through inheritance. When it is divided, it is transferred. And every transfer must comply with the law.

The Court adds an observation that perfectly captures the rationale of the rule: "It would make no sense to dissolve the joint ownership of an illegal building by assigning it to one of the co-heirs as exclusive ownership, when such a building must be demolished anyway."

Assigning an illegal building to a co-heir means handing them a property that cannot be sold, cannot be regularized without significant costs, and could be subject to demolition. The division would lose its function of distributing wealth, not problems.

The way out: partial division

The Court of Cassation, however, does not block the proceedings. It indicates the path of partial division. If the estate contains illegal buildings, the judge can divide all other assets and exclude the irregular ones, thus avoiding the nullity of the deed and allowing the co-heirs to proceed with the dissolution of the joint ownership.

This solution protects urban planning legality without paralyzing the entire succession process. It confirms that building regulations are a structural element of the division.

A warning for those dealing with inheritance

The ordinance reminds us that building regulations are a matter of public interest and that its verification is "ex officio, at every stage and level of the proceedings." A warning that applies to judges, but also to professionals and heirs. Before dividing, you need to truly understand what you're dividing. A succession is a process that requires technical, legal, and financial expertise, as well as the ability to interpret previously signed agreements in light of regulations that cannot be ignored. The Agenzia delle Successioni can provide support to citizens and thus avoid making mistakes in this area. To book a consultation, simply fill out the form. It is therefore also important for the purposes of inheritance division to determine the costs for demolition or regularization of abuses, falling within a portion of land, which must be considered in the division of the estate.