THE ESTABLISHMENT OF SERVITUDES ALLOWING FOR PARKING: THE RECENT JUDGEMENT OF THE SUPREME COURT

The recent judgement no. 3925 issued by the Italian Supreme Court on 13 February 2024 ruled about the admissibility of a right of servitude which includes the right to park.

Servitude is provided for by art. 1027 of the Italian civil code, that defines it as a burden on a land, servient tenement, for the benefit of another land, dominant tenement, owned by a different property owner. Therefore, it refers to a right which grants specific use or enjoyment of a land to the owner of another land, or to prevent the servient tenement’s owner to carry out a specific activity, restricting the right of use or enjoyment of said land. It is a right in rem, given its enforceability against the world at large, and being attached to a specific property rather than to a specific person.

The Supreme Court’s case law has variously interpreted servitudes allowing for the parking of a car on a piece of land. Older jurisprudence, judgements no. 8137/2004 and 1551/2009 of the Italian Supreme Court being an example, did not encompass said right in the definition of servitude. The act of parking was seen as the object of a right in personam, as it did not refer to the benefit of the dominant tenement, but to an interest or advantage of specific people entering the land. The constitutive contract of such servitude, would, therefore, be void, as specified by the Italian Supreme Court in judgement no. 23708/2014.

Since judgement no. 16698/2017 of the Italian Supreme Court, several decisions, going against the previous prevailing pattern, hold for the admissibility of servitudes allowing for parking. It was stated that art. 1027 of the Italian civil code does not preclude the constitution of atypical servitudes, provided that the aforementioned requirements are met, as stated in other Supreme Court case law, between the other, judgements no. 7561/2019 and 192/2020.

In the case ruled by the Court, a servitude designated for parking and transit of motor vehicles on a servient tenement was established through an agreement. Subsequently, the land was later sold to a third party, who filed a claim to obtain the voidness declaration of the contract. The owner appealed to the Court of Appeal of Venice against the judgement of dismissal of the Court. Both Courts ruled that the plaintiff was aware of the servitude when he bought the land, as it was regularly specified in the sale agreement. The benefit provided for in art. 1028 of the Italian civil code was detected in the need for availability of such space to allow for the activities of the company operating on the dominating tenement. It was also noticed that such servitude had all of the characteristic required for by the law regarding rights in rem, and that the agreement didn’t compromise the use of the servient tenement. The plaintiff appealed the Supreme Court for five reasons. With the first reason, he denounced that the Court of Appeal did not properly analyse the contract to verify the existence of the requirements of rights in rem. With the second reason, he claimed that it wasn’t possible to detect a link between the benefit provided for by the servitude and the land in itself, while the economic interest protected was only referred to the company operating on such land. With the third reason, he asserted that the servient tenement was completely prevented from any use from the owner, given the possibility for the counterparts to use the whole property for parking. With the fourth reason, the plaintiff denounced the violation of the principles relating to the burden of the proof, as it should have been the responsibility of the party declaring to own the right of servitude, to demonstrate the existence of the requirements for such right. With the fifth reason, it was claimed that local rules prevented for the use of non-agricultural areas, as the servient tenement of the controversy, for parking.

The Supreme Court adhered to the interpretation of servitude provided by the case law of 2017. Legal academic discourse cited in the judgement referred to the principle of contractual autonomy, as provided for by art. 1322 of the Italian civil code, to state that the parties have the freedom to establish both rights in rem and rights in personam, with the intention of designating a specific area for parking. The Court argued that in the previous case law, the possibility that the benefit emerging from the agreements was directly connected to the land, and not to the owner of said land, had been overlooked without proper assessment. Thus, it stated that it is possible for the parties to agree to establish a right of servitudes allowing for parking on a land, as long as, based on a specific assessment to carry out on the contract, the requirements of the right in rem are met.

The Supreme Court deemed the first and third reasons valid, in light of the absence of the aforementioned assessment, and upheld the appeal.

The Court clarified an issue that had long been uncertain, given the cited contrast in jurisprudence, stating the validity, within out legal system, of an agreement aimed at establishing a servitude allowing for parking. The interpretation of the parking of vehicles as a inherent utility to the property, rather than solely for the property owner, provides greater assurance of the economic actors who choose to exercise their contractual autonomy, relating to the opportunity to regulate the right to park withing the framework of rights in rem or in personam.

Author: Dott.ssa Dafne Tomasetto