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United Sections of the Supreme Court: the principle of accession operates ex article 934 civ. cod. on the construction realized on land held in common by one of the co-owners

The ground held in common by more than one individual, in the case in which one of the owners has constructed a building or another structure on that ground – contrary to what was sustained by the juridical orientation, which held as applicable, the discipline in matter of communion according to the art. 1100 and following civ. cod. – does not represent a hinderance to the full operating of the accession principle ex art. 934 civ. cod.

To settle the conflict arose between the simple sections, with the sentence number 3873 of February 16th, 2018, the United Sections of the Supreme Court recognized that – in lack of a counter agreement, and of an appropriate title for construction or a real right on the above mentioned ground, in written form ad subastantiam – the full property of all the co-owners in proportion to the respective dominical shares.

However, the Judges of the Corte di Cassazione have moreover specified that, if the co-owner has acted against the specific ban of the other owner (that is without their knowledge) the latter has the right to the ius tollendi in order to go back to the status quo ante and in case of lack of or impossible usage, the building’s co-owner will see the recognition of a right of credit – weighting on the other co-owners, in proportion to the respective shares – as a refund for the costs of the construction.

 

 



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