Adverse possession, also known as “squatter’s rights”, is a legal principle in which an individual who does not have a legal title to a piece of property can acquire lawful ownership based on continuous possession or occupation. In Italy adverse possession is usually invoked when those possessing the property have occupied it for at least 20 years.
Adverse possession is not without its limits however. When the co-owners of a property allow for its usage by a third party, the Italian Civil Code does not generally permit that party to claim adverse possession. That said, certain legal precedents have demonstrated the flexibility of this “tolerance” principle, particularly if the person claiming adverse possession has utilized the real estate for a long duration.
Adverse possession and family members
All these questions were addressed in a recent ruling by the Supreme Court of Italy (Court of Cassation). The court reaffirmed that use of a property over a long period can add legitimacy to a claim of ownership. However, as will be seen in this case, adverse possession can’t be used to dispossess co-owners who are family members.
The case submitted to the judge involves Mr. Q. M., co-owner of a property in Rome to which the other heirs are his aunt, mother and sister. He resided in the building and was the only one in possession of keys. Q. M. sued his mother, sister and aunt seeking verification of his sole ownership of the property by way of adverse possession. The Court of Rome rejected the petition. He then appealed this ruling, once again requesting verification of his claim of sole ownership.
The Court of Appeals in Rome accepted his argument and declared adverse possession was justified in this case. The judge cited the unavailability of the keys to the aunt, mother and sister as evidence of their lack of use of the property. Furthermore, the long duration of use by the appellant excluded the tolerance requirement provided by art. 1144 of the Italian Civil Code.
The decision of the Supreme Court of Italy
The aunt, mother, and sister then appealed this ruling to the Supreme Court of Italy.
The panel of judges on the Supreme Court disagreed with the appellate court and “ruled out the validity of adverse possession in this specific case”. The court asserted that with respect to adverse possession of jointly-owned properties, the co-owner must utilize it “in ways that are incompatible with the possibility of use by others and thereby underscores the unequivocal desire to maintain exclusive ownership”. The court reiterated that a long duration of use “adds a presumptive element of ownership which supersedes the tolerance principle unless the co-owner is a family member.” (ordinance no. 9359/2021 published 8/4/21).