Goodbye to co-ownership now precludes possible compensation claims
The exercise of a right may not cause unjust damage
2' min read
2' min read
If one considers that, in the majority of concrete cases, the 'nuisance' real estate does not belong to a single proprietor, but (often for reasons of inheritance) there is a plurality of co-owners who sometimes do not get along or do not even know each other, the real significance of the judgment of the Unified Sections 23093/2025 is to be observed with regard to the co-owner's waiver of the proprietary share of co-ownership.
Unlike the deed of renunciation of the right of ownership, which is not expressly contemplated in the Civil Code (in which the principle that the vacant property belongs to the State is stated 'only': Article 827), the deed of renunciation of the right of co-ownership is mainly mentioned:
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- in Article 882, which allows the co-owner of a common wall to release himself from the costs of repair and reconstruction by renouncing his right to share the wall;
- Article 1104, which allows theco-owner of a common thing to release himself from the expenses necessary for the preservation and enjoyment of the common thing as well as from the expenses decided upon by the majority of the joint owners,by renouncing his share of co-ownership of the common thing.
In both cases, the effect of the renunciation is the proportional expansion of the co-ownership shares of the other co-owners: for example, if the ownership of a building is held by four persons, in equal shares between them, the renunciation of one of them causes the other three to become co-owners at the rate of one third each.
Now, the interpretative event that, in fact, blocked the stipulation of deeds of renunciation of the right to real property, also slowed down the stipulation of deeds of renunciation of the co-ownership share: in fact, despite the fact that the law expressly provides for this renunciation, there was still the danger that there might be a claim for compensation for the damage demonstrated by the co-owners who suffered the expansion of their co-ownership shares due to the renunciation of others. In fact, one of the most relevant arguments that the State Property Office had raised in order to oppose the conclusion of deeds that would lead to the purchase of the renounced property by the State was precisely that unilateral renunciation may cause unforeseen costs for the State (maintenance, demolition, safety measures, reclamation, etc.).
After judgement 23093/2025, therefore, the danger that the renouncing co-owner may be sued for liability by the increased co-owners appears to have been averted. Firstly, because he is exercising his right: by definition, the exercise of a right (it may well cause annoyance to one's neighbour, but of course) does not cause an unjust damage (Article 2043 of the Civil Code) and, as such, does not cause compensable damage. Secondly, because the increased co-owner, if he does not like the situation, may also, in turn, renounce his right of co-ownership; and, if from a situation of many co-owners, only one co-owner remains in the end, the latter may also, quite legitimately, renounce the right of which, by dint of renunciations, he has become the exclusive holder, causing its acquisition by the State.
