Introduction
Generally at the time of the notarial deed of purchase, the buyer is placed in the possession of the property by handing over the keys and by the possibility of physically entering in the real estate.
It may happen that at the time of the deed, the seller can not leave the property free; most of the time this happens because the seller itself is in turn looking for a home to move into, but the causes can be multiple.
Or can happen that the buyer needs to enter the possession of the property before the deed of purchase; this can happen, for example, to carry out renovations.
Possession is a very important issue in italian real estate law, therefore, before understanding how these needs can be regulated, an overview of the institution of possession is useful.
The possession
Article 1140 of Italian Civil Code provides the definition of possession: “the power over what manifests itself in an activity corresponding to the exercise of property or other real right. You can possess it directly or by means of another person”.
The possession is the power or the relationship between a subject and a good that manifests itself in an activity that corresponds to that exercised by who is the holder of a real right on the thing, regardless of the existence of such rights (for a closer look at the real rightsItalian real rights (or rights in rem): definition and classification – The Legal Nook (antonellolawfirm.com))
Possession requires presence between two elements:
- corpus possesionis: an objective element indicating the attitude of the possessor who behaves like the owner of the rights to the object;
- animus possidendi: subjective element that pertains to the will of the possessor to behave as the holder of the right to the thing.
Possession and detention: differences
The Italian Civil Code does not provide a definition of detention, but in general detention means the material availability that is based on a legal title (the classic examples are that of a loan agreement and lease) that the holder has for a thing that belongs to another person.
Possession is distinguished into:
- qualified: when the holder has a right of enjoyment over the property (e.g., the tenant of a property leased to him), or otherwise has managerial power;
- unqualified: the holder exercises power over the thing under the direct control of the owner (ex: Titius uses the car belonging to Caius, who at any time in the can demand its return).
Possession and right of ownership: differences
Our Civil Code regulates the right of ownership in Article 832 “The owner has the right to enjoy and dispose of things fully and exclusively, within the limits and with the observance of the obligations established by the legal system.”
Therefore, the owner has title to the right of ownership.
Interversion of possession
Interversion of possession occurs when the detentor becomes a the possessor of the good.
The classic example is when the detentor of a real estate leased to him, following succession against the owner, becomes the owner of the property itself.
The possession of the property
The release into possession of the property represents the moment when the buyer takes possession of the property being sold.
The release into possession generally takes place at the same time as the purchase and sale; in fact, at the time of the notarial deed of purchase, there is simultaneous delivery of the keys to the buyer.
However, the parties may provide that the purchaser’s entry into possession of the property takes place at a different time, specifically either before or after the notarial deed of sale, agreeing already in the preliminary contract; it is in these cases we can have respectively:
- anticipated possession of the property;
- deferred possession in the property.
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