Order No. 8660 of 2024: Easement of Forced Passage and Exemptions under the Civil Code

The recent Order No. 8660 of April 2, 2024, issued by the Court of Appeal of Venice, addresses a crucial issue in Italian civil law: the easement of forced passage and related exemptions. This ruling highlights the limitations and application criteria of the provisions contained in Articles 1051 and 1052 of the Civil Code, providing an important interpretation of the concept of exemption for residential areas.

Context of the Ruling

The legal proceedings involved M. A. (plaintiff) and S. G. (defendant) concerning a request for an easement of forced passage over a non-landlocked property. Specifically, the Court had to assess whether it was possible to grant the easement in question, despite the existence of alternative routes. According to Article 1051, paragraph 4, of the Civil Code, houses, courtyards, gardens, and threshing floors cannot be subjected to this type of easement, except under specific conditions.

Exemptions Provided by the Civil Code

The headnote of the ruling states:

Houses, courtyards, gardens, and threshing floors - Applicability of exemption also to the hypothesis of a non-landlocked property - Existence - Absolute operation of the prohibition - Exclusion - Limits. In matters of easements of forced passage, the provision of Article 1051, paragraph 4, of the Civil Code – which exempts houses, courtyards, gardens, and adjacent threshing floors from subjection and is also applicable to the hypothesis of passage over a non-landlocked property, based on the reference contained in the subsequent Article 1052 of the Civil Code – does not provide for an absolute exemption of the areas indicated from the easement of passage, but rather a criterion for choice, where possible, in cases where the needs underlying the request for an easement can be met by alternative routes, among which priority must be given to those not affecting the aforementioned areas.

This wording emphasizes that there is no total exemption for the areas mentioned, but rather a criterion that favors the search for alternative solutions. In other words, an easement of forced passage can only be granted if there are no other practicable routes that do not affect the protected areas.

Conclusions

The order under review offers an important reflection on easements of forced passage, highlighting not only the protection of residential properties but also the need to consider the practical needs of the parties involved. The Court has demonstrated that, while recognizing the right of passage, it is essential to protect residential areas from possible abuses. This ruling represents a significant step forward in clarifying the rules on easements and encourages parties to explore alternative solutions before resorting to requests for forced passage.