Private and Public law Ownership rights 1. Ownership rights in the Italian Constitution (general principles) 2. Ownership rights and other “ad rem” rights in the Italian Civil Code 3. Public property

Ownership rights in the Italian Constitution (general principles)

Ownership rights in the Italian legal system _________________________________ Right of ownership: art Property is either public or private. Economic goods belong to the State, to public entities or to private individuals. - Private property is recognized and guaranteed by the law, which determines the ways it is acquired, enjoyed and the relevant limitations, in order to ensure its social function and to make it accessible to all. - Owned goods may be expropriated, in the situations provided for by the law, for reasons of general interest, provided that appropriate compensation is granted. - The law shall set out the rules and limits of legitimate and testamentary inheritance and the rights of the State in matters of inheritance.

Ownership rights in the Italian legal system _________________________________ - the law may not limit individuals’ ownership rights except for the ways it is acquired and enjoyed - expropriation may not occur to deprive an individual of his/her ownership rights and to grant those to another individual: expropriation may be only aimed at ensuring achievement of public goals (public interest)

Ownership rights in the Italian legal system _________________________________ - ideally, the Constitution envisages ownership as a tool to promote / increase social welfare, not as something which is enjoyed by the owner only - owned goods should be dynamically “oriented” to production / trade, they should not just statically held by the owner

Ownership rights in the Italian Civil Code

Ownership rights in the Italian legal system _________________________________ ownership: art. 832 of the Civil Code The owner has the right to enjoy and dispose of things fully and exclusively, within the limits and in compliance with the obligations set out by the law.

No statutory limitation periods Ownership is perpetual Ownership rights in the Italian legal system _______________________________

Ownership rights in the Italian legal system _________________________________ ownership: art. 834 of the Civil Code No one may be deprived of ownership unless for public interest reasons, provided that: (i) such reasons are acknowledged in accordance with the law; and (ii) adequate compensation is paid to the person to whom expropriation is addressed.

Abuse of ownership right -> atti di emulazione -Subjective element: intention to cause damage to other subjects’ property -Objective element: lack of any reasonable purpose justifying the action Ownership rights in the Italian legal system _______________________________

Extension of (physical limitations to) ownership: -The owner is not entitled to object to activities performed by third parties above (or below) the surface he/she owns, if there is no reasonable interest to block it -Exception: right of surface (dritto di superficie) Ownership rights in the Italian legal system _______________________________

The owner may not prohibit objects, persons, noise, smoke or other disturbing effects (immissioni) coming into his/her land, if they do not exceed the reasonable tolerance ‘threshold’ Exceptions: if particular production needs must be protected; priority must be given to a particular use of land Ownership rights in the Italian legal system _______________________________

Ways to acquire ownership: Occupation (occupazione): abandoned or nobody’s goods Finding (invenzione): lost goods Attraction/incorporation (accessione) Ownership rights in the Italian legal system _______________________________

Attraction/incorporation (accessione) movable asset with another movable asset: (A) mixture of elements which may no longer be severed (“unione”); (B) change/manipulation of the original elements as a result of work done by someone (“specificazione”) movable asset with immovable property (ownership over the land “prevails”: e.g.: trees or cultivations) immovable property with other immovable property Ownership rights in the Italian legal system _______________________________

The main “ad rem” rights (rights to enjoy benefits over a third party’s property) Ownership Right of surface Usufruct Easements (servitù) Ownership rights in the Italian legal system _______________________________

Right of surface -Right to create or maintain buildings or other structures over a third party’s land (a separate ownership over such constructions is set up) -If the constructions fall apart or are destroyed, the right of surface remains in place -The holder of the right of surface may assign (or create rights over) constructions to third parties (but when the right of surface is exinguished, rights over constructions are also extinguished). Mortgages (or a right of usufruct) may be also created over the constructions - if the holder of the right of surface does not exercise his/her right by 20 years, the right of surface is forefeited Ownership rights in the Italian legal system _______________________________

Usufruct -Right to enjoy a third party’s property, provided that the good’s economic destination is not diverted; right to get benefits/interests out of the good -Obligation to deliver the good back to the owner -It must be temporary (max 30 years for legal entities) -It may be also created over perishable goods or consumable goods: what do I have to give back? -It may be assigned to third parties; the holder may create mortgages over the right of usufruct -Obligation to pay expenses and to take care of the good custody and management Ownership rights in the Italian legal system _______________________________

Easements -Burden created over a piece of land for the benefit of another piece of land belonging to a different owner (e.g., easement of way, easements relating to the use of water, energy cables, etc.) -Burdens may never be represented by an obligation to perform something (personal obligation) -Lands must be close to one another -Easement may be created either by virtue of an agreement or by operation of law -Expenses are borne by the owner of the “dominant” land -the owner of the “dominant” land must act reasonably Ownership rights in the Italian legal system _______________________________

Joint ownership (comunione) -Right of each participant to enjoy a commonly- owned good (“pro indiviso”) -Each participant is entitled to enjoy the good, but its economic destination must not be diverted -Obligation to pay expenses on a pro quota basis -Right to assign or dispose of each share -Majority rule (simple or qualified majority); unanimous consent to dismiss the commonly- owned good Ownership rights in the Italian legal system _______________________________

Possession -Factual situation - exercise of ownership powers over a good, as a matter of fact -Objective element (availability of a good) + subjective element (the holder is not willing to deliver the good back to any other subject) -Possession may be jointly exercised by several persons (joint posession) -Possession may be claimed before Court (within 1 year of the loss of the good) -Good faith possession (good faith is assumed): see next slide Ownership rights in the Italian legal system _______________________________

Transmission of possession entails purchase of ownership if: -The purchaser acts in good faith -A valid purchase agreement has been entered into -The purchaser has actually acquired possession of the good -The purchaser acquires full ownership of the good, even in case that the seller was not the actual owner (he/she had no legal title to transfer the good) Ownership rights in the Italian legal system _______________________________

Public properties

Ownership rights in the Italian legal system _________________________________ public property: State-owned goods (“beni demaniali” and “beni patrimoniali") They are set to meet a public/general need or interest In certain cases, they may not be disposed of They may not be diverted from their public destination

Art. 9 of the Constitution: The Republic promotes the development of culture and scientific and technical research. It safeguards the natural landscape and the historical and art heritage of the nation Ownership rights in the Italian legal system _________________________________ public property is also subject to limitations:

Ownership rights in the Italian legal system _________________________________ - soil / natural resources should be exploited for production purposes in accordance with the social needs and public interest - production should be organized in accordance with the need to harmonize social relationships - minor undertakings should be encouraged: special care is taken for agricultural businesses (in particular those managing small pieces of land). Limitations may be imposed to the extension of land owned