Notes on the right of usury of rustic land

Article 1159 of the Civil Code states, “The ownership of rustic land with attached buildings located in municipalities classified as mountainous by law is acquired by virtue of continuous possession for fifteen years. A person who acquires in good faith from a non-owner, by virtue of a title that is capable of transferring ownership and that is duly transcribed, a rustic property with attached buildings, located in municipalities classified as mountainous by law, shall complete the usucaption in his favor with the lapse of five years from the date of transcription. The special law establishes the procedure, manner and facilities for regularization of title. The provisions of the preceding paragraphs shall also apply to rustic land with attached buildings, located in municipalities not classified as mountainous by law, having an income not exceeding the limits set by the special law.”

Usucapione (from Latin uso – capere, to take by use) is one of the institutions of Italian law. Usucaption integrates one of the ways of acquiring property, or a right in rem of enjoyment, which is achieved through possession protracted for a certain period of time and, sometimes, with the concurrence of certain additional requirements, which have the function of shortening the time frame necessary for the institution to operate.

According to case law, the legal effects of usucaption are produced automatically as a consequence of one or more legal facts, such that it is to recognize mere declaratory value to the judgment ascertaining the existence of these factual prerequisites.

In addition, the majority doctrine also holds that usucaption represents a special mode of acquisition, on an original basis (i.e., without any connection between the right exercised over the property by the current owner and the right exercised by the previous owner), based on acquisitive prescription.

Usucaption is, therefore, a way of acquiring a right through its use. This use must be continuous, uninterrupted, nor contested, peaceful, and must not descend from favor or pleasure or by toleration of the rightful owner, nor by virtue of a relationship of service or dependence, but must be practiced with the conviction of being the actual owner through acts that manifest lordship over the thing (e.g., exploitation of the property, maintenance works, etc., etc.).

It should be borne in mind that the useful period for usucation is normally twenty years (Article 1158 Civil Code), but for rustic land it is fifteen years (Article 1159a Civil Code).

The law favors this form of acquisition by assuming that the rightful owner over many years has renounced in the face of positive behavior by others (for example: a person who for many years uses someone else’s land as an owner and exercises a right of way on someone else’s land)

It should be pointed out that the rightful owner can defend and protect his or her right to the property by protesting and objecting in writing and serving a court order to stop possession. In such a deed it is necessary to request that the fund be freed from any interference by the third party.

As for the lapse of minimum time, the possession of the current possessor cumulates with that of his or her predecessor (for example: parent or person from whom one inherits).

Procedurally, for the purpose of recognizing the right accrued by usucaption, it is necessary to file a court application that ascertains, on the basis of witnesses and documents to be communicated to the judge, the situation and, subsequently, that a judgment be issued by the judge to be transcribed at the appropriate offices.

As for the basis of usucaption, the various doctrinal approaches hold that it fulfills a plurality of functions, however, the most concrete one seems to be the one aimed at intensifying the circulation of wealth and legal transactions. One of the main purposes of usucaption, in fact, is to make the formal ownership of rights certain and stable: if there were no usucaption, the proof of the provenance of the right of ownership or other right in rem, which the person claiming to be the owner would be obliged to provide, would have no limits and one would have to go back to the mists of time, with the consequence that it might be difficult, if not impossible(probatio diabolica), to prove the ownership of property.

Further purpose is, surely, to reward the person who has demonstrated a greater propensity to exploit and enhance the asset by letting the right of those who have not used it for a period of time deemed sufficient, depending on the circumstances identified by law

The two indispensable elements for the occurrence of usucaption are possession of the thing and the passage of a specified period of time. To be relevant for the purpose of usucaption, however, possession must meet certain requirements.

First, it must be certain and incapable of generating doubt in third parties as to the actual intention of the person to engage in an activity corresponding to the exercise of property or other real right. Possession must be peaceful and public, i.e., not acquired violently or clandestinely (see, among others, Civil Cassation Judgment No. 6997 of 17-7-1998). It should, finally, be continuous and uninterrupted over time. It should be pointed out, however, that possession, in addition to having the characteristics just mentioned, must be of one or more properties suitable for usucapation. In fact, goods that are in commerce are usuctible while so-called res communes omnium, that is, those goods that qualify as state property, are not usuctible. Therefore, while property belonging to the public domain is not usucapable, property belonging to the unavailable assets of the state or other public entities is, on the other hand, provided that, according to Art. 828 Civil Code, their typical purpose is not changed by the possession itself.

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo