Real estate waiver: validity, effects and legal significance according to the United Sections

The judgment of the Unified Sections 23093/2025 (see Il Sole 124 Ore of 13 August), which sanctions, in every case and without exception, the perfect flawlessness of the deed of waiver of the right to real property, entails significant consequences in terms of the concrete professional application of the substantial theoretical apparatus illustrated in its more than fifty pages.

In fact, notaries are frequently asked to draw up deeds of renunciation of the right of ownership of real estate for the reason that there are countless situations in which the proprietor not only derives no benefit from the buildings and land he owns, but also has to bear often not insignificant costs: aside from the municipal property tax, one thinks of the insurance for damages caused by the property, ordinary and extraordinary maintenance work, securing landslides or unsafe buildings or cutting down trees that threaten road traffic or power lines, etc. Very often these are cases where the owner cannot find (even by paying) a buyer or a donee to dispose of these situations.

In order to address this need, professional doctrine began to deal with the issue of renunciation of real estate in 2014 following a study by the National Council of Notaries (No 216-2014/C commented on by the Sole 24 Ore on 25 April 2014) that cleared these renunciation deeds, previously never entered into, supporting them with appropriate reasoning attesting to their lawfulness.

The initial enthusiasm of the owners of troublesome real estate was, however, soon quelled by the considerable aversion of the state offices to 'undergoing' the purchase of such property (Article 827 of the Civil Code in fact states that the renunciation of real property causes its automatic acquisition by the State): the arguments for this reluctance were many and serious, ranging from the assertion of the nullity of the act of renunciation (due to illegality of the cause, illegality of the motive, fraud against the law or abuse of right), to the threat of the compensability of the damage deriving to the State from the act of renunciation as it was considered emulative. Judgement 23093/2025 reports that the Agenzia del Demanio (State Property Agency) has examined 128 cases of abdicative renunciation (evidently not appreciated by the Agency itself), of which 89 are pending before the courts and 39 are at the extrajudicial stage; these cases have now all been resolved automatically and it is foreseeable that, when the post-August resumption takes place, the mass of situations that have so far remained frozen due to the uncertainty of the fate that the renunciation deeds might have had will have to be dealt with.

Judgement 23093/2025 affirms that, since the renunciation of the right to real estate is a unilateral non-translative act (the State's acquisition occurs by way of original title), the rules on the cadastral conformity of buildings do not have to be applied in the first place, which may therefore be renounced even if they have a cadastral situation (census or planimetric) that does not conform to the state of affairs.