What are usucapione property rights?
Usucapione property rights in Italy date back to Roman law. The closest terms to Usucapione in common law are limitation of rights and adverse possession.
According to Roman law, so long as someone didn’t take possession of an asset through theft or force, usucapione allowed them to become the lawful proprietor of the asset. The legal owner had a certain period of time to re-claim the asset, but if this didn’t occur, the title passed to the possessor.
Later, Napoleonic law also incorporated Usucapio laws. Today, elements of the legislation still exist in Italian law.
Current usucapione property rights concern the uninterrupted and unchallenged use of an immovable asset by someone who does not actually own the title. This may be land or a building.
Adverse possession is one of the most contentious ways of acquiring a property. Generally, in order to apply to register a title to a property, the adverse possessor of the land or building will have been in possession of, or using the property for 10 years, although there are provisions which extend this to 30 years.
Legally, at the end of the relevant time period, the adverse possessor can apply for a court judgement to become the registered owner of the land or building in question.
Basic requirements of adverse possession
There are five basic requirements that an adverse possessor must meet to successfully claim usucapione property rights:
1. Actual Possession
The adverse possessor must have actual, physical control over the property.
2. Open and Notorious Use
The use and possession of the land must be visible and apparent. This gives notice to the legal owner that someone may make a claim to the property.
3. Exclusive Possession
The adverse possessor cannot occupy the land jointly with the owner or share possession in common with the public.
4. Hostile Possession
Adverse possession must be hostile to the title owner’s interest in the property. The word “hostile” in an adverse possession claim does not mean showing ill will or that the adverse possessor and legal owner are enemies. Rather, it means that the adverse possessor maintains that he or she holds the property as an owner against all other claims to the land.
5. Continuous and Uninterrupted Use
All elements of adverse possession must be met at all times through the relevant period of time. Occasional activity with long gaps in activity therefore fails the test of continuous possession.
Usucapione property rights case
In 2001, a US national inherited a house and land in Italy from an elderly Italian aunt. The nephew had spent many enjoyable summer holidays on the property when he was growing up. He remembered a strip of land between his aunt’s house and the neighbouring property. When his aunt was alive, a neighbour used to cultivate vegetables there. The nephew assumed that the vegetable plot belonged to the neighbour, who was a distant cousin.
Following the aunt’s death, the neighbouring cousin offered to look after everything for the nephew. For many reasons, this seemed like a good idea at the time. The nephew therefore entrusted the property’s maintenance to his distant cousin. The cousin looked after the American nephew’s property well and continued to use the strip of land between the properties. In fact, the cousin had it fenced and built a patio, barbecue area and a gazebo.
In the summer of 2013, the American nephew retired. He and his wife decided to move to Italy. The nephew decided to have his property surveyed. He discovered in fact, that he owned the land between his and the neighbouring cousin’s property. The question was, did the nephew really own the land anymore? Because of his cousin’s open and unchallenged use of the property for over 30 years, if the case went to court, it would likely rule against the nephew’s property rights.
Do you find yourself in a similar case?
If you are an Italian property owner, and you do not dispute the use of your property, where do you stand? You, as the legal owner, may well be deemed to have abandoned your property rights. There are several elements needed for adverse possession to apply for title transfer and registration:
– Length of time (10 – 30 years depending on the case).
– Use of the property must be open for all to see.
– Possession must be hostile to the legal owner of the land.
– Gaining a title to property through usucapione requires a court judgement.
As we have seen, usucapione can have a dramatic impact on land ownership rights. An encroachment could result in the title of your property being transferred to an adverse possessor. Under these circumstances, you might have to bring a lawsuit for trespass in order to prevent someone from obtaining the title to your property.
For example, someone who has no legal entitlement to a parcel of your land may have been openly using that land to cultivate vegetables for a decade or more. You, as the legal owner of the land, may even have periodically received some of the produce as a gift. From a legal point of view, this could imply your tacit agreement to the cultivator’s adverse possession of a piece of your land.
Conducting appropriate property searches is vital
If you are considering purchasing property or land in Italy, it is important that you don’t sign any documents or paperwork before conducting appropriate searches. Amongst other things, you should check whether there are any usucapione issues. It is vital to understand exactly what you are buying, where the boundaries are and what type of easements, such as rights of way exist.
Purchasing a property anywhere is a major financial commitment for most people. Make sure you safeguard your conveyancing. We would always recommend that you seek independent legal advice before making any legally-binding commitment.
For over 55 years, De Tullio Law Firm has been providing international clients with independent legal advice throughout Italy. We are specialists in cross border property, inheritance and family law.
If you would like further information about buying an Italian property, we are here to help. We can guide you through the whole process or even organise the whole process on your behalf. Get in touch with us for a free preliminary consultation.