Easement of passage: comment on Ordinance No. 11243 of 2024

The recent Ordinance No. 11243 of April 26, 2024, from the Court of Cassation has provided important clarifications regarding easements of passage, a topic of great relevance in civil law. This ruling, which overturned a previous decision by the Court of Appeal of L'Aquila, focuses on the issue of original acquisition and the ambulatory nature of the easement, key elements for understanding the rights of landowners.

The legal context of the easement of passage

The easement of passage is a real right that allows the owner of a property (servient estate) to pass through another property (dominant estate). According to Article 1146 of the Civil Code, the easement can be acquired either originally or derivatively. The ruling in question mainly deals with the first form of acquisition.

Easement of passage - Original acquisition by the transferor - Existence - Derivative acquisition by the purchaser of the property - Ambulatory nature of the easement - Consequences - Need to ascertain the direct relationship between the purchaser and the property - Exclusion - Case. The ascertainment of the original acquisition of the easement of passage in favor of the transferor who transmits his property derivatively, due to the principle of the ambulatory nature of the easement, excludes the need to ascertain the existence of a direct relationship between the successor and the acquired property. (In this case, the Supreme Court overturned the ruling that deemed it necessary to verify the requirements set out in Article 1146, paragraph 2, of the Civil Code regarding the successor of a property on which the transferor had already acquired the right of easement of passage originally).

Ambulatory nature of the easement and rights of purchasers

The Court reaffirmed the principle of the ambulatory nature of the easement, which establishes that an easement follows the dominant estate even in the case of transfer to third parties. In this sense, the purchaser of the property does not need to demonstrate a direct relationship with the property burdened by the easement, as the right of passage has already been acquired by the transferor. This principle simplifies the situation for purchasers, avoiding complications related to the verification of pre-existing rights.

  • The easement of passage is a real right that allows transit over another's property.
  • The principle of ambulatory nature implies that the easement follows the dominant estate even in the case of transfer.
  • It is not necessary to ascertain a direct relationship between the purchaser and the property to benefit from the easement.

Conclusions

In summary, Ordinance No. 11243 of 2024 represents an important step forward in legal clarity regarding easements of passage. It confirms the validity of the principle of ambulatory nature and simplifies procedures for purchasers of properties, thereby ensuring greater certainty and protection of property rights. It is essential for legal practitioners and landowners to understand these provisions to avoid future legal disputes.

Bianucci Law Firm