Private and Public law
Ownership rights
1. Ownership rights in the Italian Constitution (general
principles)
2. Ownership rights and other “ad rem” rights in the
Italian Civil Code
3. Public property
Ownership rights
in the Italian Constitution
(general principles)
Ownership rights in the Italian legal system
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Right of ownership: art. 42
- Property is either public or private. Economic goods belong to the
State, to public entities or to private individuals.
- Private property is recognized and guaranteed by the law, which
determines the ways it is acquired, enjoyed and the relevant
limitations, in order to ensure its social function and to make it
accessible to all.
- Owned goods may be expropriated, in the situations provided for
by the law, for reasons of general interest, provided that appropriate
compensation is granted.
- The law shall set out the rules and limits of legitimate and
testamentary inheritance and the rights of the State in matters of
inheritance.
Ownership rights in the Italian legal system
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- the law may not limit individuals’ ownership rights
except for the ways it is acquired and enjoyed
- expropriation may not occur to deprive an
individual of his/her ownership rights and to grant
those to another individual: expropriation may be
only aimed at ensuring achievement of public goals
(public interest)
Ownership rights in the Italian legal system
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- ideally, the Constitution envisages ownership as a
tool to promote / increase social welfare, not as
something which is enjoyed by the owner only
- owned goods should be dynamically “oriented” to
production / trade, they should not just statically
held by the owner
Ownership rights
in the Italian Civil Code
Ownership rights in the Italian legal system
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ownership: art. 832 of the Civil Code
The owner has the right to enjoy and dispose of
things fully and exclusively, within the limits and in
compliance with the obligations set out by the law.
Ownership rights in the Italian legal system
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• No statutory limitation periods
• Ownership is perpetual
Ownership rights in the Italian legal system
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ownership: art. 834 of the Civil Code
No one may be deprived of ownership unless for
public interest reasons, provided that: (i) such
reasons are acknowledged in accordance with the
law; and (ii) adequate compensation is paid to the
person to whom expropriation is addressed.
Ownership rights in the Italian legal system
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Abuse of ownership right -> atti di emulazione
- Subjective element: intention to cause
damage to other subjects’ property
- Objective element: lack of any reasonable
purpose justifying the action
Ownership rights in the Italian legal system
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Extension of (physical limitations to) ownership:
- The owner is not entitled to object to
activities performed by third parties above (or
below) the surface he/she owns, if there is no
reasonable interest to block it
- Exception: right of surface (dritto di superficie)
Ownership rights in the Italian legal system
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The owner may not prohibit objects, persons,
noise, smoke or other disturbing effects
(immissioni) coming into his/her land, if they do
not exceed the reasonable tolerance ‘threshold’
Exceptions: if particular production needs must
be protected; priority must be given to a
particular use of land
Ownership rights in the Italian legal system
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Ways to acquire ownership:
• Occupation (occupazione): abandoned or
nobody’s goods
• Finding (invenzione): lost goods
• Attraction/incorporation (accessione)
Ownership rights in the Italian legal system
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Attraction/incorporation (accessione)
• movable asset with another movable asset: (A)
mixture of elements which may no longer be
severed (“unione”); (B) change/manipulation of
the original elements as a result of work done by
someone (“specificazione”)
• movable asset with immovable property
(ownership over the land “prevails”: e.g.: trees or
cultivations)
• immovable property with other immovable
property
Ownership rights in the Italian legal system
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The main “ad rem” rights
(rights to enjoy benefits over a third party’s
property)
•
•
•
•
Ownership
Right of surface
Usufruct
Easements (servitù)
Ownership rights in the Italian legal system
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• Right of surface
- Right to create or maintain buildings or other structures
over a third party’s land (a separate ownership over such
constructions is set up)
- If the constructions fall apart or are destroyed, the right of
surface remains in place
- The holder of the right of surface may assign (or create
rights over) constructions to third parties (but when the
right of surface is exinguished, rights over constructions are
also extinguished). Mortgages (or a right of usufruct) may
be also created over the constructions
- if the holder of the right of surface does not exercise
his/her right by 20 years, the right of surface is forefeited
Ownership rights in the Italian legal system
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•
Usufruct
- Right to enjoy a third party’s property, provided that
the good’s economic destination is not diverted;
right to get benefits/interests out of the good
- Obligation to deliver the good back to the owner
- It must be temporary (max 30 years for legal entities)
- It may be also created over perishable goods or
consumable goods: what do I have to give back?
- It may be assigned to third parties; the holder may
create mortgages over the right of usufruct
- Obligation to pay expenses and to take care of the
good custody and management
Ownership rights in the Italian legal system
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•
Easements
- Burden created over a piece of land for the benefit of
another piece of land belonging to a different owner
(e.g., easement of way, easements relating to the use
of water, energy cables, etc.)
- Burdens may never be represented by an obligation to
perform something (personal obligation)
- Lands must be close to one another
- Easement may be created either by virtue of an
agreement or by operation of law
- Expenses are borne by the owner of the “dominant”
land
- the owner of the “dominant” land must act reasonably
Ownership rights in the Italian legal system
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• Joint ownership (comunione)
Right of each participant to enjoy a commonlyowned good (“pro indiviso”)
Each participant is entitled to enjoy the good,
but its economic destination must not be
diverted
Obligation to pay expenses on a pro quota basis
Right to assign or dispose of each share
Majority rule (simple or qualified majority);
unanimous consent to dismiss the commonlyowned good
Ownership rights in the Italian legal system
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• Possession
- Factual situation - exercise of ownership powers over a
good, as a matter of fact
- Objective element (availability of a good) + subjective
element (the holder is not willing to deliver the good
back to any other subject)
- Possession may be jointly exercised by several persons
(joint posession)
- Possession may be claimed before Court (within 1 year
of the loss of the good)
- Good faith possession (good faith is assumed): see
next slide
Ownership rights in the Italian legal system
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• Transmission of possession entails purchase
of ownership if:
- The purchaser acts in good faith
- A valid purchase agreement has been entered into
- The purchaser has actually acquired possession of
the good
- The purchaser acquires full ownership of the good,
even in case that the seller was not the actual
owner (he/she had no legal title to transfer the good)
Public properties
Ownership rights in the Italian legal system
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public property: State-owned goods
(“beni demaniali” and “beni
patrimoniali")
They are set to meet a public/general need or
interest
In certain cases, they may not be disposed of
They may not be diverted from their public
destination
Ownership rights in the Italian legal system
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public property is also subject to
limitations:
Art. 9 of the Constitution:
The Republic promotes the development of culture and
scientific and technical research. It safeguards the natural
landscape and the historical and art heritage of the nation
Ownership rights in the Italian legal system
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- soil / natural resources should be exploited for
production purposes in accordance with the social needs
and public interest
- production should be organized in accordance with the
need to harmonize social relationships
- minor undertakings should be encouraged: special care
is taken for agricultural businesses (in particular those
managing small pieces of land). Limitations may be
imposed to the extension of land owned