UPDATES ON THE RENUNCIATION OF THE RIGHT OF REAL ESTATE OWNERSHIP

The Joint Chambers of the Supreme Court, recently called upon to express themselves on the configurability, effects and limits of the renunciation of the right of ownership, with judgment no. 23093/2025 have established certain revolutionary principles, fundamental in order to better delineate the scope of this right. Ownership, in fact, is defined by Article 832 of the Italian Civil Code as the “right to enjoy and dispose of things in a full and exclusive manner,” although the owner of the asset is nonetheless bound to respect certain limits and to observe the obligations established by the legal system. In particular, Article 42 of the Italian Constitution is relevant in relation to ownership, since in its second paragraph, in addition to recognizing this right and guaranteeing its protection by law, emphasizes the peculiar social function it fulfills.

In this judgment, the Joint Chambers addressed the issue of the renunciation of ownership, in order to ensure interpretative uniformity following two referrals arising from two similar cases, concerning the ownership respectively of certain plots of land and of a building, all located in rugged and high-risk areas.

In particular, the Supreme Court, in examining the issue of the admissibility of the renunciation of ownership, first analyzed its social function, which is enshrined - it pointed out - from the perspective of satisfying not only the individual interest of the owner, but also general interests. However, the Court specified that this cannot be translated into a duty, for the owner, to remain such in order to protect merely a collective interest, whenever any patrimonial utility of the asset ceases to exist, together with the faculty to enjoy and dispose of it. Therefore, even where the renunciation of real estate ownership is driven by a primarily self-interested purpose, the judge cannot review such renunciation or declare null and void the act of disposal which, in fact, would not be in conflict with any mandatory rule.

The renunciation of the right of ownership, according to the Joint Chambers, is a dispositive act, which must necessarily be accompanied by the intention and the material conduct of abandonment.

This implies that the renunciation of real estate ownership qualifies as a unilateral and non-receptive act, an expression of the faculty to dispose of the asset belonging ex lege to the owner, and whose sole function is to dismiss the right. Such declaration of will must be expressed in the form of a notarial deed or a private writing, also for the purposes of recording the act in the land registers for its enforceability against third parties.

The first effect of the renunciation of ownership, therefore, is the extinction of the right in the legal sphere of its holder.

A further consequence of the divestiture of the right is then the original acquisition of ownership of the asset by the State; this pursuant to Article 827 of the Italian Civil Code, under which real estate that belongs to no one becomes the property of the State. It will therefore be the State that is called upon to ensure landscape, environmental and archaeological protection, as well as public safety wherever the dismissed asset presents risks to public security, as in the two cases in question. Since the acquisition of ownership of the asset by the State responds to interests of general scope, the economic convenience of such acquisition is in no way relevant.

The Supreme Court, also referring to orientations consolidated over the years, emphasized how the renunciation of the right of ownership consists in a voluntary diminution of one’s own estate, thereby reaffirming its gratuitous nature. Finally, starting from the opportunity to distinguish the divestiture of the right of ownership from the so-called “liberatory abandonment,” aimed at getting rid of an obligation related to the asset itself, it examined the limits of the renunciation of real estate ownership, excluding that it may represent an instrument for circumventing mandatory rules. In fact, through renunciation it is not possible to escape obligations arising during the period in which one was the owner of the asset, so that the State will only be liable for obligations arising after the acquisition of the asset into the state domain as a result of the renunciation, and not for those accrued to the previous owner.

Authors: Avv. Gianfilippo Chiricozzi e Ilaria Saraceno