Usucapione (Usucapion or Adverse Possession)
What is Usucapione?
Usucapione represents a legal method of acquiring the ownership of an Italian property.
There are two essential elements to usucapione:
- Material possession of the asset, acting as the owner (as opposite to someone who received the right of use from the owner, e.g., by means of a contract);
- The passage of a specific period of time;
In the context of usucapione, possession should be:
- peaceful: meaning possession should not have occurred through violent or clandestine means;
- continuous and uninterrupted throughout the time: meaning that possession should not be intermittent.
Time is the essential element to achieve usucapione and depends on:
- category of the asset;
- the possessor’s subjective position (i.e whether usucapione has been done in good or bad faith);
- the existence of a legal title to a property;
Italian legislation provides for::
- 20 years for properties whose possession was acquired in bad faith;
- 20 years for other rights concerning real estate (e.g. usufruct, right of use, easements etc.);
- 10 years if the property was acquired in good faith with a registered title deed by a party who was not the real property owner;
During the above mentioned periods of time, possession must be uninterrupted.
What does uninterrupted mean? It means that possession should not be interrupted for more than one year. For example, if the owner takes back possession of his asset for more than one year, usucapione is considered as interrupted.
According to case law, it is compulsory to provide clear evidence concerning the start of possession. Very often witnesses play a crucial role.
Not all assets are subject to usucapione. State-owned property and/or public assets, for example, cannot be adversely possessed.
A case of usucapione?
Giovanni found an unoccupied house on the outskirts of a Sicilian town in 1969. He rebuilt the property over a period of several years, moving in as he finished refurbishing rooms. Over a period of years, Giovanni tamed the garden. He fenced it in and established a vegetable plot and fruit orchard. He also fenced in some land abutting the property, where he keeps a flock of sheep. Although Giovanni has no documents proving his title to the property, throughout the past fifty years, Giovanni has behaved as if he is the owner.
Marie Louise, an American citizen who also has an Italian passport, has presented a claim on the property. She asserts that she inherited the property from her grandfather and that she is the rightful owner.
Will Marie Louise succeed with her claim? Or will Giovanni be deemed to have acquired rights, through usucapione, on the property?
How to organize a legal case based on usucapione:
The first step is to ensure you can evidence your right, specifically to have possessed the property, “uti dominus” (as if you were the owner of the property). Examples could be that you have rented the property, executed building work, etc.
Generally speaking, the role of witnesses is crucial. It is therefore essential to contact individuals who are prepared to give evidence in a court of law. Obviously, documented evidence is also important (for example, receipts regarding tax payments, invoices concerning building work, etc).
Before starting a court case, it is imperative in the preliminary phase to apply, with the support of a lawyer, for a compulsory mediation procedure with a mediation body (Organismo di mediazione) accredited by the Italian Ministry of Foreign Affairs. The application should indicate the parties involved in the procedure and the assets considered subject to usucapione.
Where the mediation procedure results in a successful outcome, the agreement reached by the parties must be officialised in the presence of a notary public.
In case of a negative outcome from a mediation procedure, it is possible to then start legal proceedings in court.
Back to the above case regarding Marie Louise and Giovanni.
Marie Louise can sue Giovanni in court to claim back possession and re-establish her full ownership of the property. The success of Marie Louise’s claim will depend on her ability to prove that she acquired the property by valid title and that the property belonged to her predecessors by valid title prior to her inheriting it. In addition, if Marie Louise can prove that Giovanni’s holding has been interrupted or that a proprietary action was instituted by her during Giovanni’s holding and therefore his acquisitive prescription is incomplete, Marie Louise might be able to claim back possession of the property.
In order to challenge Marie Louise’s claim, Giovanni should use witnesses to testify that he fenced in the land and has worked the garden in a public, continuous and uninterrupted manner for the past fifty years – as if he were the owner. If during the past fifty years, he has also had access to utilities (e.g., water, electricity) and if he has paid property taxes, Giovanni should produce receipts which could support his usucapione counter-claim.
The Judge or the Mediator will review all the circumstances of the case and assess whether Usucapione has taken place.
For more about usucapione, try this article or get in touch with us.
Giandomenico De Tullio