Unusable properties: the Supreme Court says yes to the renunciation of ownership

The cases examined: P2 terrain and landslide areas

The ruling arises from the examination of two specific cases. The first concerns land in the Municipality of Bomba (L’Aquila) classified as “substantially unusable and devoid of economic value” because it is entirely subject to high danger constraint P2 of the Hydrogeological Management Plan of the Abruzzo Region. The second case concerns a property in Belluno located in an area included in the Inventory of Landslide Phenomena in Italy.

In both situations the State had requested the nullity of the waiver, arguing that the owners had passed on very high costs and civil and criminal liabilities to the community. The issue was submitted to the Supreme Court and the ruling ruled in favor of the former owners.

Legal nature: unilateral act that must not be communicated to the other party

In fact, the Court underlined that renunciation is a non-receptive unilateral act of an abdicative nature. Translated: only the will of the owner expressed in the notarial deed is needed, without the need to communicate it to the State or other subjects to produce effects.

The cause of the act is identified in the exercise of the power provided for by art. 832 of the civil code: the owner has the right to choose what to do with his goods, including that of disposing of ownership. The Court clarified that the renunciation expresses the owner’s negative interest in maintaining ownership of the property, especially when the latter no longer offers any economic utility or involves disproportionate burdens (as in the case of unusable land or dilapidated buildings in risk areas).

And the “selfish” purpose (freeing oneself from burdens) does not constitute an abuse of rights nor does it lead to the nullity of the act because there is no “duty to be and remain an owner” for reasons of general interest. Therefore the act cannot be contested nor is there any room for its annulment.

Public deed and transcription

As for the methods, the waiver requires only the written form, i.e. a public deed or authenticated private agreement. The deed must then be registered in the land registers. The Court specifies that the transcription must be carried out only against the renouncer, not also in favor of the State because once the renouncement is completed, the property becomes “vacant” pursuant to the art. 827 of the civil code.

This means that the transition to the available assets of the State operates automatically, without the need for acceptance. It is not essentially a donation, since the art. 827 attributes ownership of vacant properties to the State for reasons of territorial sovereignty, regardless of the economic convenience of the acquisition. The renunciation serves only to include the property in the list of those without an owner.

Previous responsibilities borne by the renouncer

The waiver, obviously, is effective only for the future. Therefore, from the day of the act, no more taxes will be due, but those who renounce remain obliged to:

• taxes (IMU, TARI) accrued until the registration of the deed;
• liability for any damage caused to the property before surrender;
• environmental reclamation and safety obligations arising in application of the “polluter pays” principle (art. 242 of Legislative Decree 152/2006).

Furthermore, condominium expenses and consortium contributions already accrued remain the responsibility of the owner.

Protection of creditors: revocation action

The renouncer’s creditors, however, can take action to make the renouncement ineffective against them. However, proof of prejudice is needed. In the presence of objectively uneconomic properties (market value lower than management costs), the revocation action has limited margins of success: the exit of the asset from the debtor’s assets does not cause prejudice if the asset only generates liabilities.