Possession of immovable portion: what course of action should be followed?

A wall was built more than thirty years ago on the border between my property and a piece of land. That land was then put up for sale and purchased by a third party. Can the fact that I was not interested in the sale make me risk losing the portion of land through adverse possession?

to understand whether it is possible that adverse possession of that part of land has occurred and, therefore, whether it is possible to invoke this right to purchase property, it is necessary to start from the legislation.

Article 1158 of the civil code establishes that ownership of real estate and other real rights of enjoyment of the same assets are acquired by virtue of continuous possession for twenty years.

Therefore, whoever invokes adverse possession must prove both the objective element of “

corpus” (i.e. having exercised a de facto power over the property corresponding to the exercise of the right of ownership), and the “animus possidendi” for the time necessary to use it. For the purposes of adverse possession, in fact, it is necessary for the interested party to externalize exclusive dominion over the property through an activity that is openly conflicting and incompatible with the possession of others.

The possession useful for the purposes of configuring the purchase of the original ownership right by usucaption does not result in the mere use of the land, but must take the form of acts suitable to express, in concrete terms, the exercise of lordship over the property as if it were an owner. From this point of view, since the main connotation of the right to property is the power to exclude third parties from the enjoyment of the property which constitutes its object (so-called ius excludendi alios), the judge of merit must ascertain, in concrete terms, whether the subject who is in a material relationship with the thing has demonstrated not only that he has used it, but that he has, in fact, prevented third parties from using it. With specific reference to agricultural lands which – by their very nature – are intended for agricultural exploitation, the problem arises of the manner in which, in concrete terms, this action can, or should, be manifested. In this regard, it should be considered that the most striking expression of the right of ownership is represented by the power to close the fund, pursuant to Article 841 of the Civil Code. (Civil Supreme Court, section II, 06/28/2023, n. 18528).

From what I perceived from the description, the action in this case would have consisted in the construction of this low wall which delimits access, or in any case makes it more difficult.

In this sense, this operation could constitute, in the abstract, a hypothesis of inversion of possession, such as to allow the twenty-year term for adverse possession to accrue.

On the other hand, one could always argue that the fact of having been disinterested in the purchase, at the time of the sale, should be considered as an act of renouncing the right to plead such adverse possession, and I would readily focus on this.

I don’t quite understand whether it is your intention to have the wall demolished, or whether or not you simply understand whether or not you might be burdened by the risk of having to defend yourself from the demands of your neighbor one day.

In any case, if the wall is a nuisance, and falls within your property, I would proceed with such demolition, given that – until proven otherwise – you have become the owner.

Otherwise, if the wall doesn’t bother you, I would leave things as they are, so as not to fuel unnecessary future controversy.

Article taken from the consultancy provided byadv. Salvatore Cirilla