Actions to defend possession and agrarian contracts

The action of reinstatement or perusal serves a recuperative function, providing protection to the possessor (or holder) who has been deprived, violently or covertly, in whole or in part, of possession of the thing. Recovering function also valid in the agrarian sphere in the case where the object of dispossession is a rustic estate, which is the subject of qualified possession or holding.

The standard of reference is Article 1168 of the Civil Code, which expressly provides that “Aperson who has been violently or covertly dispossessed may, within one year of the suffered dispossession, petition against the author of the dispossession for the reinstatement of such possession… [salvo precisare che] … If the dispossession is clandestine, the time limit for petitioning for reinstatement shall run from the day of the discovery of the dispossession.”

As for the requirement of violence, well-established case law has clarified that, for the existence of the aforementioned requirement, it is not necessary that the dispossession took place with physical violence, but it is sufficient that it took place against (or without) the actual, even if only presumed, will of the possessor (see Cass. civ., Sec. II, Oct. 29, 1993, No. 1131; Cass. civ., Feb. 23, 1981, No. 1101).

Simpler, on the other hand, is the definition of the requirement of clandestinity, which does not consist of the dispossession of the property committed without the knowledge of the possessor or holder, who in fact becomes aware of it only at a later time (see Cass. Civ., Sec. II, Jan. 28, 1995, No. 1036). Circumstance, the latter, which would be otherwise qualified if the unawareness had been brought about by negligent behavior on the part of the dispossessed person himself or of the persons acting on his behalf (see Cass. civ., Sec. II, March 5, 2014, No. 5215).

Essential requirement, moreover, for the purpose of the exercise of the right and the consequent reinstatement of possession is the continuation of the property in the material availability of the perpetrator of the dispossession, or the transfer of the property to a third party who is, however, aware that the dispossession has taken place.

The active legitimacy for the exercise of the action belongs not only to the possessor of the property, but also to the holder, who does not have to be such for reasons of hospitality or service in his or her own interest, and, therefore, the more uxorio cohabitant (see Cass. civ. Sec. I, 11-09-2015, no. 17971) may also act.

In the agrarian field, the Supreme Court has confirmed how a tenant who conducts land under a valid and effective contract at least annually has full standing to protect his or her possession and the consequent exercise of the action of dispossession. It also clarified that a person who has the use of the fund under a contract that-because of its interim duration and content limited to the purchase of grasses-does not constitute an agrarian lease, but rather a mere contract for the purchase and sale of the grasses obtained from the fund, is not entitled to a dispossession action. In fact, the agrarian lease contract alone, by guaranteeing the lasting grant in enjoyment of the land for productive purposes, gives the tenant the qualified possession necessary for the legitimate exercise of the action (see Cass. civ. sec. II, Nov. 29, 2006, No. 25240).

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo