Derive e approdi in tema di rinuncia alla proprietà immobiliare

The essay deals with abandonment of real estate ownership, which for over seventy years has been considered admissible by legal scholars, while in recent years it has undergone reconsideration. Nowadays, in fact, some authors consider it inadmissible or limitedly admissible (provided it does not concern “expensive” or “harmful” real estate), on the basis of its alleged contradiction to the social function of property or of other arguments of uncertain foundation. The problem is interesting in itself, but also because it involves important aspects of legal methodology. First and foremost, the essay aims to reaffirm the admissibility of abandonment, finding its foundation under applicable Italian law (that allows it, like French, Spanish and German law and unlike common law systems). At the same time, it aims to clarify the grounds for the escheat of vacant properties (also those which have been relinquished) by the State. From this point of view, the fact that any real property abandoned by its owner becomes the property of the State by virtue of its sovereignty over the territory makes it impossible to say that the State cannot be burdened by the ownership of “problematic” properties. Secondly, the essay critically rejects the thesis of some legal scholars asserting that abandonment contrasts with the social function of property, on the argument that the shaping of property according to the so called social function requires legislative mediation. In any case, legal limitations on the right to transfer property cannot be referred to abandonment, as analogy does not occur. Neither can legal limitations on the right to abandon movable property, set by waste regulations, be applied to immovable property due to lack of compatibility. Furthermore, the essay illustrates the reasons why it is not possible to argue that abandonment is inadmissible as illicit, as well as because it constitutes an abuse of right or an act of emulation (according to article 833 of Italian civil code), or because it is economically inefficient. Finally, the essay critically examines the thesis which attributes to the State a power to refuse to become owner of relinquished properties, consequently qualifying abandonment of real estate ownership ineffective in the event of refusal by the State. On the contrary, the State does not have the power of refusal, nor can it abandon real property.