possession

• In the Italian legal system, property rights are concerned with owning, while obligations are concerned with owing.
• Property rights are those that have a special connection with a property ("bene"), can be exercised without the cooperation of another person, and are binding on all persons and can be asserted against anyone ("erga omnes").
• Real actions can be brought against anyone who impends the holder's exercise of the property right.
• The property right "follows" the property, also known as the right to trace.
• The orthodox Italian legal view regards property rights as fixed in number and closed, so that their list cannot be enlarged (numerus clausus principle).
• Legal practice has recently created and made use of new types of real rights in fields related to real rights such as real securities, atypical rights of enjoyment, and others.
• The main property right is the right of ownership, followed by other property rights also known as limited real rights, which are divided into two categories: real rights with a purpose of enjoyment and real rights with a purpose of security.
• The civil code provides for a broad but ambiguous definition of property as "things that can form the subject-matter of rights" (Art. 810 c.c.).
• Italian civil code considers that the object of the real rights can be a credit (Art. 1000: usufruct of credit; Art. 2784 c.c.: pledge on a credit).
• The civil code lists as capable of constituting property also the universality of movables (Art. 816 c.c.; universalità di mobili) and fruits (Art. 820 c.c.).
• The restoration of possession shall be ordered by the court "if a prima facie case is made" and without delay, meaning that the court must decide immediately and on the basis of the common knowledge of the fact (the violent and secret deprivation of possession) without further inquiry.
• One who has been disturbed in possession of an immovable can within a year of the disturbance sue for protection of possession (action to protect possession) according to Art 1170 c.c.
• There are two actions for the defense of possession: the action for recovery of possession (Art 1168 c.c.) and the action to protect possession (Art 1170 c.c.).
• The requirement of "violence" in Art 1168 is ignored by case law, which interprets "violent deprivation" as seizure contrary to the possessor's will.
• The action for recovery of possession (Art 1168 c.c.) becomes identical to the action against non-violent seizures (Art 1170 c.c.).
• The action for recovery is available to both good faith and bad faith possessors, as Art 1168 c.c. extends the eligibility also to a person "who has custody of the thing, except in case in which he has it for reasons of service or hospitality".
• Art 1168 protects the possessor who has been violently or by stealth deprived of possession, allowing the latter to sue the taker for recovery of possession within a year of the loss.
• The law provides for remedies against the deprivation and/or the disturbance of possession that are quick and effective.
• Disturbance of possession is something less than seizure and is any actual or psychological conduct that causes nuisance to the possessor.
• Natural fruits belong to the owner of the thing that produces them, civil fruits are acquired gradually according to the duration of the right (Art. 821 c.c.).
• In the Italian legal system, "property" may be both a material and immaterial thing.
• The human body cannot be classified as property according to Art. 5 c.c., as a person cannot dispose of his own body if the act of disposition causes a permanent impairment of one's physical integrity or is otherwise contrary to law, public policy or morals.
• The Italian civil code distinguishes between immovable and movable property (Art. 812 c.c.).
• This article has been read as the source of a general prohibition of the abuse of right.
• Recently, the European Court of Human Right and the Italian Constitutional Court have issued decisions on fundamental points in this area.
• The Constitution allows that private property may be expropriated for reasons of general public interest but requires that the cases in which this is possible are set forth by an ordinary state law and that the owner of property is compensated.
• The Italian Constitution guarantees the right of ownership but considers it from a political and social perspective rather than from the point of view of private law.
• From the point of view of the subject who holds the right, we consider the ownership in the interest of others, the ownership of legal subjects and fiduciary ownership.
• Article 833 c.c. sets forth that "the owner cannot perform acts that have no other purpose than of harming or causing annoyance to others".
• Article 42 provides a guarantee against unjust taking of private lands by the State ("espropriazione").
• The owner has also the right to transform and destroy her property, with special legislation applying to specific goods such as cultural property and waste.
• The civil code presents a particular limit to the right of fully enjoying and disposing of things: the prohibition against the so-called "emulative acts".
• Article 2654 - quater establishes restrictions on the use of property.
• From the point of view of the object of the ownership, we distinguish between urban planning, rural property, and ownership over a movable property.
• Since the issue of the civil code, special legislation, has more and more molded and shaped the right of ownership (so-called "conformazione" of ownership).
• Article 2645 - ter allows the segregation of some property from the rest of the settlor's assets in order to pursue interests "worthy of protection according to the legal order".
• The limits of ownership can be in the public interest and in the private interest.
• The decree of the President of Italian Republic No. 104/2016, which regulates the expropriation of private property for public works, is a significant step in this area.
• The Constitutional Court did not link compensation for expropriation to the market value of the property nor did it ask for compensation to be paid in advance.
• The holder of rights of ownership enjoys only some, not all, of the utility that can be drawn from ownership.