The recent ruling no. 10686 of April 19, 2024, by the Court of Cassation offers important points for reflection regarding the assignment of the family home, especially when the latter is subject to a bankruptcy procedure. In this article, we will analyze the key aspects of the ruling, clarifying the rights of creditors and the implications for spouses involved in a separation.
The Court addressed a case where a property, subject to an assignment order for the family home, was put up for forced sale. The central issue concerned the position of a creditor who had registered a mortgage on the property before the transcription of the assignment order. The Court established that the creditor can have the property sold as free, but with important clarifications.
In general. In the case of a forced sale of a property that is subject to an assignment order for the family home, the creditor who registered a mortgage prior to the transcription of the assignment can, under Article 2812, paragraph 1, of the Civil Code, have the property sold compulsorily as free; however, if this does not occur and the property is sold burdened by the right of residence, that right is enforceable against the successful bidder, since the subject of the purchase and its exact attributes, within the limits determined by the order that provided for the sale, are unambiguously perceivable by the public of potential bidders.
This maxim highlights a crucial aspect of the matter: the right of residence, recognized in favor of the assigned spouse, assumes fundamental importance in the context of forced sales. In fact, if the property is sold while the right of residence is still in effect, the successful bidder cannot ignore that right, which remains enforceable against the new owner.
The ruling refers to several provisions of the Civil Code, including:
These provisions, along with established jurisprudence, outline a complex regulatory framework that protects the rights of the assigned spouse and defines the limits within which creditors can act. It is essential for legal professionals to be aware of these dynamics to provide adequate advice to their clients.
The ruling no. 10686 of 2024 represents an important milestone in Italian jurisprudence regarding the assignment of the family home and the rights of creditors. It clarifies that, despite the powers of the mortgage creditor, the rights of residence can endure and are enforceable, thus protecting spouses in separation situations. Understanding these dynamics is essential for anyone facing similar situations, both as a legal professional and as an involved party.
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