Easements and Passive Standing: Commentary on Order No. 11601 of 2024

The recent Order No. 11601 of April 30, 2024, issued by the Court of Cassation, provides significant clarification regarding passive standing in matters of easements. In particular, the Court focused on who can be considered to have passive standing in cases of dispute over the existence of an easement. This aspect is crucial for the protection of the rights of property owners and easement holders, as well as for the management of conflicts between parties.

The Concept of Passive Standing

Passive standing, according to the Court, primarily belongs to the party contesting the existence of the easement who has a current relationship with the servient property. This includes the owner, co-owner, holder of a real right over the property, or possessor on behalf of another. This legal approach aligns with the provisions of the Italian Civil Code, which stipulate that a judgment of ascertainment can only be enforced against such parties.

• Passive standing is therefore linked to a current connection with the servient property.
• A judgment of ascertainment can only be asserted against these parties.
• In cases of disturbance towards the easement holder, an action for restoration to the previous state is possible.

EASEMENT - CONFESSORIA (OF EASEMENT POSSESSION) - STANDING Passive standing - Ownership - Conditions - Basis. In the context of confessoria servitutis, passive standing is primarily held by the party who, in addition to contesting the existence of the easement, has a current relationship with the servient property (owner, co-owner, holder of a real right over the property, or possessor on behalf of another), as a judgment of ascertainment, which implicitly or explicitly orders the refraining from any disturbance towards the easement holder or restoration to the previous state pursuant to art. 2933 of the Civil Code, can only be enforced against such parties. The material perpetrators of the infringement of the easement right may, instead, be potentially summoned to court as recipients of the action pursuant to art. 1079 of the Civil Code, only if their conduct has concurred with that of one of the aforementioned parties, or has in any way involved the contestation of the easement, it being understood that, with respect to them, the action for damages pursuant to art. 2043 of the Civil Code and, pursuant to art. 2058 of the Civil Code, the action for restoration to the previous state with the elimination of disturbances and molestations may be pursued.

Consequences of the Ruling

This order has several practical implications. On one hand, it clarifies that passive standing in easement matters is not extended to those who do not have a direct relationship with the servient property. On the other hand, it establishes that the material perpetrators of the infringement of the easement right can only be summoned to court under specific circumstances. This means that, to protect their right, the easement holder must first identify the party with passive standing.

Conclusions

Order No. 11601 of 2024 represents an important milestone in Italian jurisprudence concerning easements. It not only reiterates the principles of passive standing but also emphasizes the importance of a current relationship with the servient property to assert legal rights. This clarification is fundamental to avoiding conflicts and ensuring the correct application of regulations regarding easements. Understanding these dynamics is crucial for anyone operating in the real estate sector or dealing with legal matters related to easement rights.