Right of Way Easement: Commentary on Order No. 11243 of 2024

The recent Order No. 11243 of April 26, 2024, issued by the Court of Cassation, has provided important clarifications regarding rights of way (servitù di passaggio), a subject of great relevance in civil law. This ruling, which overturned a previous decision by the Court of Appeal of L'Aquila, focuses on the issue of original acquisition and the transferability of the easement, key elements for understanding landowners' rights.

The Legal Context of the Right of Way Easement

A right of way easement is a real right that allows the owner of one property (servient tenement) to pass through another property (dominant tenement). According to Article 1146 of the Civil Code, an easement can be acquired either originally or derivatively. The judgment in question primarily deals with the former method of acquisition.

Right of Way Easement - Original Acquisition by the Transferor - Existence - Derivative Acquisition by the Purchaser of the Property - Transferability of the Easement - Consequences - Necessity of Ascertaining a Direct Relationship Between the Purchaser and the Property - Exclusion - Case Law. The ascertainment of the original acquisition of the right of way easement in favor of the transferor who derivatively transfers their property, due to the principle of transferability of the easement, excludes the need to ascertain the existence of a direct relationship between the transferee and the acquired property. (In this case, the Supreme Court overturned the judgment that had deemed it necessary to verify the prerequisites of Article 1146, paragraph 2, of the Civil Code concerning the transferee of a property on which the transferor had already acquired the right of way easement by original title).

Transferability of the Easement and Buyers' Rights

The Court reaffirmed the principle of the easement's transferability, which establishes that an easement follows the dominant tenement even in the event of a transfer to third parties. In this sense, the buyer of the property does not need to demonstrate a direct relationship with the property burdened by the easement, as the right of way has already been acquired by the transferor. This principle simplifies the situation for buyers, avoiding complications related to the verification of pre-existing rights.

• A right of way easement is a real right that allows transit over another's property.
• The principle of transferability implies that the easement follows the dominant tenement even upon transfer.
• It is not necessary to ascertain a direct relationship between the buyer and the property to benefit from the easement.

Conclusions

In summary, Order No. 11243 of 2024 represents a significant step forward in legal clarity regarding rights of way. It confirms the validity of the transferability principle and simplifies procedures for property buyers, thereby ensuring greater certainty and protection of property rights. It is crucial for legal professionals and landowners to understand these provisions to avoid future legal disputes.