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Sardinia and the law of real estate usucapione

Sardinia and the law of real estate usucapione

Sardinia and the law of real estate usucapione

Anyone who has entered the real estate market in Sardinia will probably have encountered the age-old question of the lack of property titles for a large portion of the local assets.

The question certainly generates confusion and suspicion and often it is not easy to understand why and how it is possible to offer properties on the market without original title for sale, if it is legitimate and above all what the implications.

Now to understand the motivation first of all, let’s make a brief historical reflection on real estate properties in Sardinia, in particular agricultural funds.

During the nineteenth century Sardinia experienced a series of events linked to specific provisions of the Savoy government aimed at imparting a strong modernizing drive to the economy and society of the island.

The Royal Edict above the closes, over the common land and the crown, and over the tobaccos, in the kingdom of Sardinia, issued on 6 October 1820 and published in April 1823, basically proposed to introduce improvements in the agricultural sector, to modernize the production techniques, encouraging investments in the countryside, creating a closed property to favor the birth of a class of owners loyal to the crown and weakening the power of the feudal lords: the main tool was the abolition of the form of community management of the land that had characterized the agricultural economy of the island.

Thus was born “the perfect ownership” of the lands, in 1936-39 the feudal system was abolished and the land registry was introduced only in 1840.

In reality none of this happened and there were many abuses and injustices that gave rise to strong resistance and consequent acts of intimidation to assert the reasons of the weaker parties, forced to pay rents and to a harsh repression by the state with acts of summary justice that caused several deaths.

Many shepherds went into hiding to escape unjustified arrests and unjustly issued convictions and hence the birth of the phenomenon of banditry in Sardinia.

In this historical and cultural context, the acquisition of many properties took place for simple more or less peaceful use uti dominus (legal term that indicates the possession of an asset as if it were the owner in a situation of inertia of the owner).

This state of affairs certainly does not indicate embezzlement given that the Italian law with the institution of usucapione protects both the owner and the possessor.

The foundation of usucapione is a general requirement, which is to eliminate situations of uncertainty about the ownership of the goods; a consolidated factual situation such as the possession of an asset for a certain time is in itself considered a way of acquiring the property.

Those who buy know they are making a fair deal only if those who have owned well for the time necessary to use it understand it. It must be conceived that owning the title of ownership of a real estate does not necessarily mean having it, but it allows you to assert your rights in the legal seat. 

Art. 1158 of the civil code establishes that the ownership of real estate and other real rights of enjoyment on the same assets are acquired by virtue of continued possession for twenty years.

Art. 1159 of the civil code establishes that anyone who buys a property in good faith from someone who is not the owner, by virtue of a title that is suitable for transferring the property and that has been duly transcribed, (public deed by the notary) the usucapione in his favor after ten years from the date of the transcription.

Possession must be held in a peaceful and uninterrupted manner throughout the period for this right to be enforced.

For the purposes of usucapione it is irrelevant whether the possession is of good or bad faith. This circumstance can only affect the length of possession necessary for usucapione.

In any case, apart from what has been mentioned above, many funds have passed from father to son in inheritance by simple possession and in the best of cases cadastral transfers have been made in conjunction with deeds of succession. It is in fact a historical and cultural issue and backwardness, the tendency in the past not to take the necessary legal and bureaucratic actions to enforce the right acquired through possession often held for well over 20 years.

Now, in the course of more than fifteen years of operation, I have often come across situations where the sale of a property was, so to speak, affected by the lack of ownership of the land where the property stood.

In fact, this is a peculiarity both of the interior and of the tourist development areas of the coastal area, given that those same areas a few decades earlier were nothing more than agricultural lands which later became buildable.          

What are the real risks and implications of making a purchase under these conditions?

  • With the lack of a property title with a historical trace of 20 or 10 years in the case of the usucapione abbreviated mentioned above it is practically impossible to obtain a mortgage from a credit institution
  • The risk of being cited by potential owners of real estate is present but definitely rather unlikely given the spread of the phenomenon and the fact that in my experience possession has always been peaceful and in many well over 20 years

  • In the case of a sale of the property purchased with this “anomaly” in the event of resale, there may be some problems, especially if those who will deal with the sale and mediation do not have full understanding of the dynamics involved

  • The advice is to rely on a trusted real estate agent with proven reliability, competence and honesty. Who knows how to provide you with all the information and who can provide you with all the information and details also through technicians and trusted notaries on site
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Bruno Riccardo Pala

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