“Passage” events involving neighbors are not unusual at all. Consider, for example, those who can not access their land through a public road or who could access it on an easier route rather than a particularly winding route. In these cases, it is essential or, in any case, preferable to go through a street, a pathor a private road, belonging to another subject, or to pass directly by the neighboring property (the garden, the park, etc. .). These are special situations that the law has seen fit to regulate by making important provisions.
Rights of way: what they are
Rights of way or “Easements of passage” fall into the category of “predictive servitudes” that they represent, in accordance with art. 1027 of the Italian civil code, the weighting imposed on a land for the benefit of another land owned by a different owner. The land that bears the weight in favor of the other is called “servant”, while the land that benefits or enjoys the imposed weight is called “dominant”.
In the rights of way, in particular, the owner of the servant land is obliged to allow the passage to the owner of the dominant land, which entails a compression of the right of ownership: normally, in fact, it is not permitted to those who are not owners to enter or pass through the property of another person. The derogation granted by the easement of passage therefore imposed on both of them a series of rights and duties.
Right of way: how are they constituted
With regard to their constitution, rights of way are divided into volunteers or coercive: in the first case, it is the parties who decide to constitute the right, for example by contract; in the second case, however, it is the law which provides for the right of one of the parties to obtain it.
Nevertheless, it is quite possible to acquire a right of way through the penalty of a judge or even a usucapion, thus demonstrating the passage on the ground of the neighbor who has not been disturbed for twenty years. The usucapion concerns the only non-apparent servitudes, that is to say those in which there are visible and permanent works intended for their use.
Land closed and not closed
A typical example of coercive servitude is the presence of an inter-land land or, in accordance with art. 1051 cc, the land surrounded by the lands of other persons and who has no exit on the public road nor can obtain it without excessive expense or inconvenience: the owner of this land has the right to obtain the passage on the neighboring land for cultivation and appropriate use of its own land.
In fact, the law allows for compulsory passage also in the case of non-nested lands, or where, although there is access to the public road, it is inadequate or insufficient for the purposes of the land and can not be extended.
In this case, the judicial authority may grant the passage only if it recognizes that the request meets the needs of agriculture or industry or the accessibility requirements referred to in the disability legislation, and the needs of residential use of persons with disabilities.
Rights and obligations of the owners
The easement of passage occurs in the presence of neighboring buildings (not necessarily neighbors) and belonging to different subjects. Unless otherwise agreed, the law provides that the owner of the service land is entitled to an indemnity proportional to the damage caused by the passage.
Owner of the servant land
The owner of the servant land, who is subject to an enforced servitude, sees his right to the joinder restricted and, for this reason, the Italian civil code grants him an indemnity proportional to the damage caused by the passage (article 1053 cc) or the diminution in value of the property. The compensation includes both the actual damage caused by the easement and the depreciation suffered by the land.
The owner of the servant land will not have to perform any specific act to allow the exercise of the servitude by the owner, unless otherwise provided by law or contract: in practice, one can not expect any behavior from the owner of the servant land. The owner of the servant land, however, may not in any way prevent or hinder the exercise of the right by the holder of the right of passage.
For example, for security reasons (for example to prevent access to non-beneficiaries), the owner is allowed to close the land, for example by installing a gate, but the fence must not prevent the peaceful exercise of the easement of passage and the holder of this right must be able to enter comfortably (for example by giving him the keys or the remote control).
Owner of the dominant land
The owner of the dominant land, by carrying out the work necessary for the preservation of the easement, will have to choose the moment and the way in which it causes less inconveniences to the owner of the servant land, because he is not authorized to aggravate the discomfort that the latter suffered immediately. However, if the works also benefit the servant land, the expenses will be borne in proportion to the respective benefits. By mutual agreement, parties may also choose different methods of managing and distributing expenses.
If, in order to carry out the passage, it is necessary to occupy parts of the servant land with stable work or leave a non-cultivated part, the owner of the dominant land will also have to pay the value of the above-mentioned area before starting the work or starting the passage.