Commentary on Judgment No. 10944 of 2024: Forced Right of Way and Absolute Landlocked Status

Judgment No. 10944 of April 23, 2024, issued by the Court of Cassation, offers important points for reflection regarding the delicate balance between property rights and the need to ensure access to landlocked properties. In this commentary, we will analyze the salient points of the judgment, particularly the application of Article 1051, paragraph 4, of the Civil Code, which governs forced rights of way.

The Regulatory Context

Article 1051 of the Italian Civil Code governs usufructuary rights over land, establishing the conditions under which the owner of a landlocked property can request passage through another's property. The judgment in question clarifies that the exemption provided by paragraph 4 of the article does not apply in cases of absolute landlocked status, where passage cannot be guaranteed without causing significant harm to the private lives of the owners of the burdened property.

Exemption under Article 1051, paragraph 4, of the Civil Code - Applicability - Limits - Operation of the exemption in the presence of absolute landlocked status - Exclusion - Basis - Judgment of comparison between opposing interests - Criteria - Extent of intrusion into private life - Exclusive jurisdiction of the trial judge. In matters of forced rights of way, the exemption provided by Article 1051, paragraph 4, of the Civil Code, in favor of houses, courtyards, gardens, and adjacent threshing floors – which applies only when the owner of the landlocked property has the option to choose among several properties through which to establish passage, at least one of which is not comprised of houses or their appurtenances – does not apply when, by respecting the exemption, the landlocked status could not be eliminated, leading to absolute landlocked status of the property with more detrimental consequences than the inconvenience of transit through courtyards, threshing floors, gardens, and the like; in such cases, the judgment of comparison and balancing of opposing interests, which must take into account not only the industrial use of the landlocked property but also the extent of the intrusion into the private lives of the owners of the burdened property, where alternatives exist, can only remain within the exclusive domain of the trial judge.

Implications of the Judgment

The Court emphasized the importance of a comparative judgment between opposing interests in situations of landlocked status. This implies that, when evaluating a request for passage, the judge must consider not only the landlocked property's need for access to a public road but also the impact that such passage would have on the private lives of the owners of the burdened property.

• The possibility of choosing among multiple properties for passage is fundamental.
• The assessment must take into account the intended use of the properties involved.
• The balancing of interests falls exclusively within the jurisdiction of the trial judge.

Conclusions

Judgment No. 10944 of 2024 serves as an important reminder of the need for a balanced approach in disputes concerning forced rights of way. It highlights how the protection of private life and property rights must always be considered in an integrated manner. Legal professionals and property owners involved in similar situations should pay particular attention to these dynamics to ensure fair and just management of access rights to properties.