3701 Right-of-Way (servitù di necessità)

Hi all :)

my house has two entrances, one to the road and one on the back of the house via an external staircase. To get to the second one, I use a driveway that cuts through my neighbour's land. I do not have the right of passage (servitù di passaggio). The neighbour and former owner of the house lets me use the driveway if I need to access the back entrance of the house - this wasn't part of the contract and I now realise that I should have insisted on it as there appears to be a potential problem for the future. The problem is that I need to install a new cesspit at the back of the house as there is currently only a very small and open one, which is of course illegal. In order to empty the yet-to-be-built cesspit, I would definitely have a tractor or some such come to the back of the house and as such now realise that I don't have any legal security to be able to do this. It's not a problem at the moment as we get on with the neighbour/former owner and we use the driveway when we need to access the back. However, we are worried that in the future, e.g. in the event of the neighbour's death, we won't have any LEGAL RIGHTS to do so. E.g. depending on whoever inherits his land we might not get on with them or they might have different ideas.

I've been trying to research this issue on Google (Italian right-of-way law) without much success. The only thing I have found out is that there is a right-of-passage (servitù di necessità) which applies if the ONLY access is across someone else's land. In the case of the cesspit, this would apply as there is no other way for anyone to empty the cesspit, other than use the driveway across the neighbour's land. What is the legal situation in such a case? Would we be able to apply for servitù di necessità on this basis? Where would we apply for it?

Of course this is only our back-up plan, if talks with the neighbour (explaining the problem and possible solution) fail. Any legal people here who can give us an idea?

Thanks :)

Lenina

Category
Legal

Submitted by Anonymous (not verified) on Sat, 05/20/2006 - 03:56

[QUOTE=Lenina]Hi all :)

my house has two entrances, one to the road and one on the back of the house via an external staircase. To get to the second one, I use a driveway that cuts through my neighbour's land. I do not have the right of passage (servitù di passaggio). The neighbour and former owner of the house lets me use the driveway if I need to access the back entrance of the house - this wasn't part of the contract and I now realise that I should have insisted on it as there appears to be a potential problem for the future. The problem is that I need to install a new cesspit at the back of the house as there is currently only a very small and open one, which is of course illegal. In order to empty the yet-to-be-built cesspit, I would definitely have a tractor or some such come to the back of the house and as such now realise that I don't have any legal security to be able to do this. It's not a problem at the moment as we get on with the neighbour/former owner and we use the driveway when we need to access the back. However, we are worried that in the future, e.g. in the event of the neighbour's death, we won't have any LEGAL RIGHTS to do so. E.g. depending on whoever inherits his land we might not get on with them or they might have different ideas.

I've been trying to research this issue on Google (Italian right-of-way law) without much success. The only thing I have found out is that there is a right-of-passage (servitù di necessità) which applies if the ONLY access is across someone else's land. In the case of the cesspit, this would apply as there is no other way for anyone to empty the cesspit, other than use the driveway across the neighbour's land. What is the legal situation in such a case? Would we be able to apply for servitù di necessità on this basis? Where would we apply for it?

Of course this is only our back-up plan, if talks with the neighbour (explaining the problem and possible solution) fail. Any legal people here who can give us an idea?

Thanks :)

Lenina[/QUOTE]
A way of pass (servitù di passaggio) can be created by contract or by a judge's decision.
The first option is simple.
The owners of the two lands agree about the right of passage: where to pass, how, with or without vehicles etc.
The contract, drafted by a notary, is "published" in the land register (Conservatoria), so in case of future purchases of the land everybody can have the legal knowledge of that right and cannot block the passage.
The second option (judge) is clearly more complicated, because needs a lawsuit and therefore costs (lawyers) and time.
How to get the right of passage through a lawsuit ?
It may happen with two situations:
- passaggio coattivo
- usucapione
Passaggio coattivo is what you've called passaggio di necessità: my land is totally surrounded by other persons' property and I have no acces to the public street. I ask the judge to grant me a right of passage for the cultivation or the better use of my land.
Usucapione means that there hase been, for more than 20 years a pacific, public and undisputed use of that right of passage.
It must be a "servitù apparente", i.e. it must appear a path, a track, anything that makes evident that there has been a continuous use of the passage.
It doesn't give ususcapione the mere tolerance of the the owner of the land where the passage is.
The judge verifies the usucapione and with his sentence "creates" the right of passage. The sentence is "published" in the land register and made public for future purchases

Submitted by Anonymous (not verified) on Sat, 05/20/2006 - 04:28

notaio - thanks very much for your reply! The problem is that my land is NOT totally surrounded by the other person's property. I.e. I can access the property from the street. However, once I put in a new pozzo nero (which I have to, by law), this will ONLY be accessible for emptying via the 'back route' to the house for which I have to use the other person's path. Would this legally qualify for passaggio coattivo or not? I.e. if I don't have any legal entitlement to the passage I can in theory not empty the pozzo nero, so I can't use the house once the pozzo is full.

I don't really want to go down the legal route and don't think I will have to. I just need to get an idea of what is in theory possible...

Thanks :)

Lenina