The Renunciation of Real Property Between Public and Private Interests
Pursuant to Article 1350 no. 5 of the Italian Civil Code, the owner or holder of a real right may renounce it by means of a formal act, which can be registered under Article 2643 no. 5 of the Civil Code, even if the act is unilateral pursuant to Article 1324. However, the current Civil Code does not provide an organic set of rules governing acts of renunciation. Cas
e law, with divergent approaches, has addressed the issue of the legitimacy of renunciations that are harmful to the community because carried out by the owner with the sole selfish aim of disposing of dilapidated properties, thereby shifting the related obligations and liabilities onto the State, which acquires ownership on the same properties by original title pursuant to Article 827 of the Civil Code.
According to one line of interpretation, this act is valid because renunciation is an inherent faculty of the right holder pursuant to Article 832 of the Civil Code; otherwise, Article 827 would be rendered inapplicable. According to another line of interpretation, instead, the same act would be null and void due to lack of meritorious cause or unlawful cause, as it is concretely aimed at pursuing purposes contrary to social utility (cfr. Articles 1322 and 1343 of the Civil Code, read in conjunction with Articles 2, 41(2), and 42 of the Constitution). A further restrictive approach reaches the same conclusion by invoking the prohibition of abuse of rights (cf. Article 833), the unlawfulness of the renouncing party’s motive (Article 1345), or fraud against the law (Article 1344).
Resolving this conflict, the United Sections of the Italian Supreme Court of Cassation have clarified that the renunciation of real property is a unilateral act expressing the right holder’s power of disposition, functionally directed toward the loss of the right. It has a “neutral consideration” (id est causa neutra) and is meritorious in itself, independently of the interests of third parties not directly affected by the legal act. Even if such renunciation is motivated by a selfish purpose, it does not give rise to a virtual nullity for conflict with the principle of Article 42(2) of the Constitution, nor to nullity for unlawful cause or motive. This is both because limitations on property, aimed at ensuring its social function, must be established by the legislature, and because Article 42(2) cannot be interpreted as imposing a duty to be or remain a property owner for reasons of general interest. Moreover, since renunciation expresses the owner’s negative interest in relinquishing title to the property, it cannot constitute an abuse of the act of exercising property rights aimed at achieving a positive interest different from the one that justifies its recognition or at obtaining an undeserved economic advantage. Any potential harm to the community or fraud against creditors, as indirect effects of the renunciation, can be addressed through other legal tools: namely, the renouncing party’s civil liability and the action to void fraudulent conveyance (id est the actio pauliana).
A different regime applies to common (public) properties because their demanial status reflects a dual belonging to the community and to its representative public body. The ownership of public property is therefore not an end in itself; it entails, for the titular public body, governance obligations aimed at ensuring the effectiveness of the various forms of public enjoyment and use of the asset. Hence the inadmissibility of renunciations involving abdication (cf. Article 823) and the emergence of community-based management of abandoned properties.