L’OBBLIGO DI FIDEIUSSIONE PER LE OPERE DI RESTAURO
In relazione all’obbligo di prestare garanzia fideiussoria previsto dal D. Lgs. del 20 giugno 2005, n. 122, attuativo della L. 2 agosto 2004, n. 210, si ritiene che risulti dovuto, ex art. 1 lett. d), per gli «immobili da costruire»: “gli immobili per i quali sia stato richiesto il permesso di costruire e che siano ancora da edificare o la cui costruzione non risulti essere stata ultimata versando in stadio tale da non consentire ancora il rilascio del certificato di agibilità”.
Ai sensi dell’art. 2 del suddetto decreto legislativo detta garanzia fideiussoria deve essere prestata “all’atto della stipula di un contratto che abbia come finalità il trasferimento non immediato della proprietà o di altro diritto reale di godimento su un immobile da costruire o di un atto avente le medesime finalità, ovvero in un momento precedente”.
Le fattispecie contrattuali comprese nell’ambito di applicazione del D. Lgs. n. 122 del 2005 si caratterizzano, tuttavia, non soltanto in funzione dell’effetto traslativo non immediato, ma anche per la peculiarità del loro oggetto.
La disciplina di cui al D. Lgs. sopra citato risulta applicabile anche agli immobili oggetto di ristrutturazione ai sensi del combinato disposto degli artt. 3, comma 1, lett. d) e 10, comma 1, lett. c), del D.P.R. 6 giugno 2001, n. 380.
Le due ipotesi sembrano giuridicamente assimilabili, poiché in entrambi i casi occorre ottenere l’emissione del permesso di costruire (ex art. 10, D.P.R. 6 giugno 2001, n. 380) e l’immobile da ristrutturare, de facto, non versa in condizioni diverse dall’immobile di nuova costruzione ancora allo stato rustico.
Per quanto riguarda l’intervento di restauro di un immobile, pur non essendo necessaria la preventiva richiesta di permesso a costruire ed essendo sufficiente la dichiarazione d’inizio attività (ex art. 22 D.P.R. 6 giugno 2001, n. 380; cfr. Sent. TAR Lazio 6131/2013), la dottrina maggioritaria ritiene che anche tale intervento edilizio (previsto espressamente dal D.P.R. 6 giugno 2001, n. 380, art. 3 lett. c) sia assoggettabile all’obbligo di fideiussione da parte del “costruttore”.
Considerata la ratio della normativa, infatti, sembra opportuno ritenere che la sopracitata disposizione sia applicabile ogniqualvolta il bene dedotto in contratto sia sostanzialmente diverso rispetto a quello esistente alla conclusione del contratto, non potendo identificare quale presupposto per l’applicazione della normativa l’obbligo di presentare una d.i.a. o una richiesta di permesso a costruire, posto che, per consistenza, tali interventi edilizi potrebbero risultare equiparabili.
In tal senso si è espresso Davide Bottarelli, nella nota a sentenza “La commerciabilità degli immobili sulla carta alla luce del d. lgs. n. 122/2005”, pubblicato in “Obbligazioni e contratti”, 2011; la Camera di Commercio di Milano, in “Codice di condotta per l’acquisto di immobili da costruire”; Altroconsumo, in “Alla larga dei fallimenti”; Monica de Paoli e Maria Nives Iannacone, in “Federnotizie”, pubblicato nel marzo 2009 e caricato sul sito dell’ordine dei notai di Trieste; il Notaio Gaetano Petrelli, in saggio “Tutela degli acquirenti di immobili da costruire”.
Secondo l’opinione di quest’ultimo notaio, l’obbligo di fideiussione per l’intervento di restauro dovrebbe essere circoscritto agli interventi che richiedono il rilascio di un nuovo certificato di agibilità, effettuando una interpretazione costituzionalmente orientata della normativa.
Unico riferimento oggettivo giurisprudenziale, che esula la fattispecie in commento, per l’applicazione della disciplina di cui al D. Lgs. 122/2005, è la sentenza della Suprema Corte di Cassazione (Cass., 10.3.2011, n. 5749; cfr. Trib. Roma, 5.1.2015, n. 207) che afferma: “in base alla definizione fornita dal decreto legislativo, possono ritenersi immobili da costruire tutti quegli immobili che si trovano in uno stadio di costruzione che si colloca tra i seguenti due momenti temporali della fase progettuale – edificatoria: dal lato iniziale, dopo l’avvenuta richiesta del permesso di costruire o (ricorrendo le condizioni di cui al D.P.R. 6 giugno 2001, n. 380, art. 22, comma 3, recante il testo unico delle disposizioni legislative e regolamentari in materia edilizia) l’avvenuta presentazione della denuncia di inizio attività; dal lato finale, prima del completamento delle finiture e della conseguente richiesta del certificato di agibilità (il cui rilascio, ai sensi dell’art. 25 del citato testo unico, va domandato entro quindici giorni dall’ultimazione, appunto, dei lavori di finitura dell’intervento)”.
Sulla scorta di questa sentenza, la relativa nota di Davide Bardelli, “La commerciabilità degli immobili sulla carta alla luce del d.lgs. n. 122/2005”, pubblicata in “Obbligazioni e contratti”, 2011, considera che limitare l’efficacia del d.lgs. n. 122/2005 ai soli acquirenti di immobile da costruire sembra ad alcuni non solo irragionevole, ma anche lesivo del principio di uguaglianza sancito dall’art. 3 della Costituzione (Casarano, Baldi, Timpano, “La tutela degli acquirenti di immobili da costruire…..”; Tucci, “le problematiche connesse al finanziamento dell’immobile da costruire……”).
Gli interventi di restauro e di risanamento conservativo, infatti, mirano alla conservazione dell’organismo edilizio ed all’assicurazione della sua funzionalità e per tali interventi si ritiene che sia da applicare la garanzia fideiussoria a tutela degli acquirenti di immobili da costruire nei casi in cui sia necessaria la richiesta di titolo abilitativo necessario per tali tipi di operazioni (d.i.a. o rilascio certificato agibilità)
In conclusione, sembra opportuno sostenere la soluzione proposta dall’orientamento dominante, poiché apparirebbe contraddittorio riconoscere l’obbligo di garanzia previsto dalla normativa in analisi per un intervento di ristrutturazione e, invece, non per quello di restauro o risanamento conservativo, che, seppur nominalmente diverso, potrebbe risultare affine nella sostanza.
24 Dicembre 2015
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