Usucaption: possession is worth title, interruption of possession and special cases

The legislature has contemplated alongside ordinary usucaption a type of usucaption that the doctrine calls “special” because of the peculiar characters that distinguish it. This institution is one that is often summarized through the formula “possession is worth title” or “non-domino acquisition” and is governed by Article 1153 of the Civil Code, an article that contains the rule that the possessor of a movable thing acquires ownership by possession immediately, that is, at the very moment he or she takes physical possession of it, provided that he or she is in good faith and the delivery is by virtue of an “abstractly suitable title.”

Before analyzing the prerequisites necessary for the operation of special usucaption, it is appropriate and to clarify that, first, in the event that one or more limited real rights encumber the thing, the non-domino acquisition determines their extinction, unless the purchaser was aware of their existence or could otherwise become aware of them using ordinary diligence, second, in the case of a conflict between several purchasers of the same movable property, the rule now set forth also applies to settle the conflict, and that is, the one among the purchasers who first achieved in good faith possession of the thing acquires ownership (cf. Article 1155 of the Civil Code).

For immovable property and property subject to registration, however, since the “possession is worth title” rule cannot operate, the conflict is resolved differently, namely, the person who transcribes first acquires ownership and the acquisition of the more diligent transcriber remains by way of derivative title.

It should not, however, be forgotten that one of the requirements of usucaption is continuity, which is intense as the condition under which possession must be exercised on a regular basis and not just occasionally. In addition, it should be kept in mind that per Civil Code Article 1142 presumes that the current possessor, who was also possessed at an earlier time, also possessed in the interim period.

In view of the above, we must now analyze what causes can interrupt the continuity of possession useful for the purpose of usucaption. Part of the doctrine distinguishes between “natural” and “civil” interruption; the former occurs when the possessor has been deprived of possession for more than a year as a result of the actions of a third party (e.g., as a result of a dispossession of the property). It is, on the other hand, civil discontinuance whenever a judicial claim (e.g., one of the actions in defense of property) has been exercised against the possessor to challenge the legitimacy of the power exercised over the thing.

For the interruption of possession ad usucapionem, Article 1165 of the Civil Code recalls the rules on the interruption of the statute of limitations, insofar as they are compatible with usucapion. Therefore, by virtue of this very postponement, usucaption is interrupted by the service of the document by which the lawsuit begins, pursuant to Art. 2943 Civil Code (but not also by the owner’s out-of-court warning) and the possessor’s recognition of another’s right (see Art. 2944 Civil Code).

Turning to a cursory discussion of particular hypotheses, two peculiar cases deserve mention:

• Usucaption in the case of joint ownership of property;
• The special usucaption regulated by Art. 1159bis Civil Code, relating to rustic funds.

The first case, provides for the case in which the co-owner can usucapate exclusive ownership of the common thing only by possessing it (for as long as necessary) in a way that is irreconcilable with the de facto possibility of common enjoyment, e.g., if the thing is drawn into his or her sphere of material and exclusive availability, totally excluding co-ownership by the other owners.

The second case, covered by Art. 1159bis Civil Code, represents a peculiar species within the category of abbreviated usucapions. It was introduced by the law of May 10, 1976 no. 346, as amended, in order to devote special discipline to small rural property, deeming protracted possession for 5 years from the date of transcription of the title to be sufficient.

The assets covered by the provision mentioned above are both rustic land with attached buildings located in municipalities classified as mountainous (by which is meant those located for at least 80 percent of their extension above six hundred meters above sea level) and rustic land with attached buildings not classified in mountainous municipalities and having a dominical income not exceeding the sum of 180.76 euros. Also with regard to the scope of application, case law has specified that the fund, in addition to being registered in the land register, must, also, be concretely used for agricultural activity. Art. 3 of the Law of 31-1-1994, no. 97 et seq. indicates, as the action to be taken for the declaration of usucaption, an appeal to the court of the place where the fund is located. The resulting judgment is a valid title to obtain transcription of the right. However, the judgment is unenforceable against the intestate of the property, usurped by the third party, who has not been heard, in advance and in full compliance with the rules of cross-examination with the usurper, during the proceedings to establish the disputed right.

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo