Adverse possession (usucapion) in Italy is a legal institute (regulated by Articles 1158 and following of the Civil Code) that allows the acquisition of ownership or another real right of enjoyment (such as usufruct, use, habitation, servitude) over an asset (movable or immovable), if possession is exercised continuously over time. It is therefore a way of acquiring ownership from an original title, meaning possession is not preceded by a transfer act (e.g., sale or donation).

The foundation of this institute lies in the need to make property certain and stable, rewarding those who take concrete care of an asset.

In general, usucapion can involve Religious Congregations (ecclesiastical bodies with civil recognition) in a dual way, depending on whether they act as subjects who acquire or who lose property.

In Italy, the assets of ecclesiastical bodies are subject to ordinary civil laws (Art. 831 c.c.), except for some exceptions dictated by the concordat norms and special legislation.

1. Usucapion against the Congregation (loss of the asset)

A third party could acquire an asset belonging to a Religious Congregation by usucapion if the prerequisites established by law are met, but a crucial distinction based on the asset’s destination must be made. The details are as follow.

A. Assets not destined for Worship (are subject to usucapion).

Most assets belonging to a Religious Congregation’s patrimony (e.g., agricultural land, residential/commercial properties, assets destined for “diverse” activities such as schools, welfare offices, administrative offices) are considered ordinary patrimonial assets.

These assets can be acquired by usucapion by a third party, unless the latter does not exercise peaceful, public, uninterrupted, and unequivocal possession for the period established by law (usually 20 years for real estate).

B. Buildings destined for worship (are not subject to usucapion)

Buildings open to the public exercise of Catholic worship are subject to a special protection (Art. 831, comma 2, c.c. and concordat agreements):

• these assets cannot be withdrawn from their destination, even by effect of alienation or usucapion, unless this destination has ceased in accordance with the laws concerning them (i.e., when the competent ecclesiastical authority, such as the bishop, does not intervene with deconsecrating or secularization);
• therefore, if it is destined for use (a Church, an Oratory, etc.), the possession by a third party is, in fact, ineffective for the purposes of usucapion.

2. Usucapion in favour of the Congregation (acquisition of the asset)

The Religious Congregation, as a legal entity, can itself acquire ownership or other real rights (like usufruct or a servitude) over assets belonging to others through usucapion:

• Usucapion is considered an acquisition by original title: case law has clarified that, for acquisitions by original title, the Congregation does not need the administrative authorization that was previously required for acquisitions by derivative title (e.g., sales or donations)
• the Congregation must have exercised possession of the asset, taking care of its maintenance, collecting its fruits, or performing any other activity that manifests factual power over the asset, for the necessary time provided by law.

In summary, usucapion is a mechanism that regulates the assets of Religious Congregations like those of any other subject, with the only but fundamental reservation for assets that enjoy the restriction of destination for public worship.

2.1. The Requirements of Possession

The ecclesiastical entity must have exercised possession over the asset with the following characteristics (Art. 1158 c.c. and subsequent):

• Possession ad usucapionem 

The possession must be exercised with the animus possidendi, that is, the will to behave as the title holder of the right (ownership or another real right), distinguishing itself from mere detention (e.g., lease or gratuitous loan). Example: The Congregation performs extraordinary restructuring and maintenance work without asking permission from the presumed owner.

• Continuous and uninterrupted 

The Congregation must never have stopped exercising factual power over the asset (continuous), and the possession must not have been interrupted neither by the owner nor by natural events (not interrupted for over a year). Example: The Congregation uses the annexed land for pastoral or oratory activities every day/year without opposition.

• Peaceful and public 

The possession must not have been acquired with violence (peacefulness) and must be manifest and visible to everyone, especially to the owner (publicity). Example: The asset is used in broad daylight, and everyone knows that the Congregation manages/uses it.

• Unequivocal

Possession must consist in a certain manner in the activity corresponding to the exercise of ownership or another real right. Example: The Congregation exercises exclusive control over the asset, excluding use by anyone else.

2.2. The time factor

Possession must last for the time established by law:

• ordinary usucapion: 20 years for real estate and real property rights.
• shortened usucapion: 10 years if the Congregation acquired the property in good faith from a non-owner, based on a title abstractly suitable for transferring ownership – for example, a sales contract void due to a defect in form – and that title was registered.

3. Crucial aspect for Religious Congregations

Historically, acts of asset acquisition by Religious Congregations (derivative acquisitions) required state and canonical administrative authorizations.

For usucapion (acquisition by original title), the case law of the Court of Cassation has established that no administrative authorization is necessary (as, in the past, the governmental authorization provided for by the repealed law no. 848/1929) for the perfection of the acquisition. In fact, usucapion matures ope legis (by effect of the law) once the prerequisites of possession and time have been verified.

4. Case law and practical applications

The acquisition of an asset through usucapion is a complex procedure and requires rigorous evidence in court.

4.1. Common examples (real estate and land)

• Fencing and maintenance (proof of possession): case law requires acts that manifest the will to possess the thing by excluding others. The mere cultivation of land is not sufficient unless accompanied by significant acts such as fencing, the execution of permanent works, the exclusion of access to the owner and third parties, or the integral payment of charges and taxes related to the property.
• Usucapion of a common wall or space in a condominium: it is possible to acquire a common part by prescription (e.g., a stairwell, a portion of the roof terrace, a courtyard) only if acts are carried out that unequivocally and permanently demonstrate having subtracted the asset from common use, preventing other condominium owners from using it. For example, locking with a padlock or structural modification.
• Rights of way (servitudes): it is also possible to acquire a servitude (real right of enjoyment) by prescription, such as the right to pass over someone else’s land, if the passage has been exercised continuously for 20 years.

4.2. The role of proof

The burden of proving possession ad usucapionem (i.e., with the requirements required by law) falls entirely on the person acting to obtain its recognition. Typical means of proof are:

• witness testimony: people who can attest to the public and uninterrupted nature of the possession throughout the required period
• documentary evidence: documents that demonstrate the possessor’s behaviour as an owner (e.g., invoices for restructuring work paid, hook-ups and payments for utilities, requests for building permits)
• presumption of intermediate possession: whoever proves to have possessed in a more remote time and to possess currently, is presumed to have possessed also in the intermediate time (Art. 1142 c.c.).

4.3. Procedure (mandatory mediation).

Usucapion is not acquired automatically but must be formally recognized. The main characteristics are as follow:

• mandatory mediation: since it falls under the matter of real rights, before starting a case in Court, it is mandatory to attempt civil mediation with the owner
• positive report: if the parties reach an agreement in mediation, the report signed and authenticated by a Notary constitutes a valid title for the registration of ownership in the real estate registers
• case in Court: if mediation fails, it is necessary to start a civil case (action for declaration of the occurred usucapion) in Court. The judgment favourable to the possessor constitutes the title for transcription.

4. Conclusions: the proactive management of real estate assets

The institution of usucapion, despite being an ancient legal mechanism, maintains a crucial relevance in the management of the real estate assets of Religious Congregations. As highlighted, the peculiar nature of the Congregations’ assets, often historical and used for purposes of worship, assistance, or education, exposes them to unique risks and opportunities linked to continuous possession over time.

It is therefore essential that Superiors and Administrators neither underestimate the eventuality of suffering usucapion on apparently abandoned assets, nor the opportunity to promote it to consolidate situations of factual possession prolonged for decades. The correct interpretation of legal terms, the “interruption” of the prescriptive terms, and the management of the proof of possession are steps that require impeccable technical precision.

Do not leave room for uncertainty: rely on the experience of a legal professional

Facing doubts about the ownership of an asset, the need to regularize a long-term asset situation, or the risk of losing a right due to inertia, timely and informed action is the only effective defence.

Our Law Firm specializes in assisting Religious Congregations, understanding and applying the specificity of their canonical and civil discipline.

We invite you to contact our experts for an in-depth consultation by writing to info@fiatlux.legal. We will analyse your specific case – whether it involves taking legal action to ascertain usucapion in your favour, or whether it is necessary to defend against claims by others – to define the solid legal strategy and resolve the issue in the best way.

Do not wait for time to exhaust your rights. Act now.