Judgment No. 10686 of 2024 and the Assignment of the Family Home: An In-depth Analysis

The recent order No. 10686 of April 19, 2024, from the Court of Cassation offers important food for thought regarding the assignment of the family home, especially when it becomes the subject of insolvency proceedings. In this article, we will analyze the key points of the judgment, clarifying the rights of creditors and the implications for spouses involved in a separation.

The Context of the Judgment

The Court addressed a case where a property, subject to an order assigning the family home, was put up for forced sale. The central issue concerned the position of a creditor who had registered a mortgage on the property before the assignment order was transcribed. The Court ruled that the creditor can have the property sold as unencumbered, but with important clarifications.

Rights of Habitation and Enforceability

In general. In the event of a forced sale of a property that is subject to an order assigning the family home, a creditor who registered a mortgage prior to the transcription of the assignment may, pursuant to Article 2812, paragraph 1, of the Civil Code, have the property compulsorily sold as unencumbered; however, if this does not occur and the property is put up for sale encumbered by the right of habitation, such right is enforceable against the successful bidder, as the subject of the purchase and its exact extent, within the limits determined by the order that ordered the sale, are unequivocally perceivable by the public of potential bidders.

This maxim highlights a crucial aspect of the matter: the right of habitation, recognized in favor of the assigned spouse, assumes fundamental importance in the context of forced sales. Indeed, if the property is sold while the right of habitation is still in effect, the successful bidder cannot ignore such right, which remains enforceable against the new owner.

Practical and Regulatory Implications

The judgment refers to several provisions of the Civil Code, including:

• Article 155 quater: concerning the assignment of the family home;
• Article 337 sexies: which deals with the protection of children's rights;
• Article 2812: relating to compulsory sale;
• Article 2919: concerning the enforceability of rights.

These provisions, along with established case law, outline a complex regulatory framework that protects the rights of the assigned spouse and defines the limits within which creditors can act. It is essential for legal professionals to be aware of these dynamics to provide adequate advice to their clients.

Conclusions

Judgment No. 10686 of 2024 represents an important milestone in Italian jurisprudence concerning the assignment of the family home and creditors' rights. It clarifies that, despite the powers of the mortgage creditor, rights of habitation can persist and are enforceable, thus protecting spouses in separation situations. Understanding these dynamics is essential for anyone facing similar situations, whether as a legal professional or as an involved party.