Situazioni di fatto e tutela del diritto all'abitazione
- Autores: Alessandro Dinisi
- Directores de la Tesis: Sergio Nasarre Aznar (dir. tes.), Emanuela Navarretta (dir. tes.)
- Lectura: En la Universitat Rovira i Virgili ( España ) en 2020
- Idioma: italiano
- Tribunal Calificador de la Tesis: Salvatore Patti (presid.), Elena Bargelli (secret.), Christoph Schmid (voc.)
- Programa de doctorado: Programa de Doctorado en Derecho por la Universidad Rovira i Virgili
- Calificación: Sobresaliente
- Materias:
- Enlaces
- Tesis en acceso abierto en: TDX
- Resumen
A.Justification and needs for the research In civil law countries, legal studies commonly analyse property rights and possessio in patrimonial terms, without taking into due account the nonpecuniary interests involved in the enjoyment of some particular kinds of goods. Apart from the broader dichotomy between movable and immovable property, the 3rd Book, Title VIII, of Italian civil code – which regulates possession – does not make any distinctions between the specific goods end-uses on which the possessory activity insists. The regulation of property rights as well is focused on the economic balance of the opposing interests at stake, without considering if their application could affect essential human needs protected at the highest level of the constitutional system.
This issue becomes crucial once we consider particular goods, such as the home, which have a direct link with personal human needs . Indeed, for its attitude to represent not just a financial asset or a physical space but also the place where an individual can fully develop his personality and find a source of social security, the house dispossession involves for the occupier an additional loss with respect to the mere commercial value . Thus, from this alternative perspective the house should be conceived as a special good: since it is the place where some fundamental rights can be fully developed, it deserves stronger protection by the overall legal order.
This peculiar attitude of the home to satisfy a fundamental human need emerges also in constitutional and international legal sources. According to the Italian Constitution, the human right of housing not only would influence law-making toward housing access enhancement but also should have horizontal effects, concerning the traditional civil institutions which regulate the enjoyment of home . International legal sources as well recognise the importance of the housing interests: according to art. 8 of the European Convention of Human Rights, as applied by the Court of Strasbourg, since «the loss of one’s home is a most extreme form of interference with the right to respect for the home […] any person at risk of being a victim thereof should in principle be able to have the proportionality of the measure determined by an independent tribunal […], notwithstanding that, under domestic law, he has no right of occupation» .
Furthermore, this case-law justify the research focus on the relationship between de facto possession and the housing law. Indeed, the institution of possession recognises the interest of a factual control over a thing despite the lack of a title, rendering it worthy of special protection. While ownership attributes to his holder several powers , including those which take advantage of the commercial value of the good (i.e. right to dispose), the regulation of possession roughly focuses on the protection of the direct enjoyment of goods. Thus, the matter of factual possession is completely oriented to preserve the good’s use value, whereas owner’s interests (like landowners and mortgage creditors rights) are often linked to its commercial value. This feature of possessory rules intercepts an essential aspect of the housing approach. Indeed, in the housing law perspective, the personal value of the home is recognised regardless the title which justifies its use but only looking at the physical control of the house. This statement is further borne out bearing in mind the scope of art. 8 ECHR. Whereas the mere fact of possession (or occupation) without any vested right isn’t protected under art. 1, Protocol I, according to art. 8 case-law, «whether or not a particular habitation constitutes a “home” for the purposes of Article 8(1) will depend on the factual circumstances of the particular links, namely the existence of sufficient and continuous links. It is not limited necessarily to those homes which have been lawfully occupied or lawfully established» . Of course, these decisions do not involve a whole and absolute protection of unlawful house occupation. Instead, they suggest how the housing security interest should be considered worthy of protection by the legal framework, despite the lack of a property right over the good.
Following these suggestions, the research aims at filling the gap between the civil law approach and the human rights perspective, investigating how the traditional institution of possession may be rethought, in order to give adequate protection to one person’s fundamental interest of housing whenever s/he lacks a legitimate legal basis. Moving from an overview of the Italian law of possession, the study integrates the traditional law of possession with the human rights doctrine to show the impact of the multi-level constitutional notion of the right of housing (art. 2 Italian Constitution, art. 7 CFREU, art. 8 ECHR) on the remedial framework of possessory situations. The effects of housing right in civil law regulation are then tested in various living situations, characterized by a different degree of exclusion and conflict (i.e. de facto cohabitation outside marriage and squatting).
In particular, the paper addresses two different types of conflicts: that arising between the possessor and the owner, on the one hand, and that between the possessor and third parties, on the other. For the first case, it considers how the owner’s lack of use of his/her property may influence the degree of protection to be granted to the possessor and justify a limitation of the opposing property right claims. For the second case, it shows how the fundamental nature of the right to housing may justify a stronger protection of the house possessor against third parties’ unlawful taking or disturbance. Eventually, the paper will propose a set of remedies – different from the ones currently available in civil law – for each case of housing exclusion, in order to ensure the stronger protection of housing interests required by constitutional legal sources.
A.1. Different concepts of housing right At a constitutional level, we can distinguish different concepts of housing rights according to the type of claim at stake in the concrete case. In the present research, the main distinction to take into account concerns the right to housing, as a right to benefit a public service of social housing thanks to a positive State action, on the one hand, and the right of housing arising from a conservative claim against a third party’s interference in the enjoyment of a house, on the other hand.
The former expresses the typical social right content, whose satisfaction depends on a positive State action: the right to housing access in favor of those who are economically excluded from the housing market requires a redistributive approach that provides social housing services supported by public finance. The main critical issue concerns the limitation of its enforceability: can the State be obliged to provide a dwelling in favor of private homeless individuals? If so, under what conditions? Finally, which legal consequences does derive from its breach? On the contrary, when protection concerns the effective enjoyment of a dwelling that is already available to the individual and his or her family, the right to housing implies the need to protect this activity, attributing to the individual a freedom from external interference, enforceable against State abuses (vertical effect) and private third-party injuries as well (horizontal effect). The structure of the claim is similar to that of other negative freedoms, since it aims to protect the private and family sphere of the person against injuries that threaten the living space. This different declination of the right to housing, because of its conservative content, which doesn’t implies positive actions, can more easily be addressed not only by the State – which is in any case obliged to respect private and family life – but also toward private relations.
Both these concepts of housing right are strictly linked to the subject matter of living situations possessory protection. Indeed, when the enjoyment of housing takes place in absence of any property right, the protection of housing continuum (right of housing) and that of access (right to housing) are intertwined, assuming a concurrent relevance for the solution of the conflict between the de facto possession and the opposing property interest.
In fact, in specific context of socio-economic vulnerability, the protection of housing interest imposes to evaluate the proportionality, despite the de facto living situation has no legal bases in the eyes of property law framework to suspend the legitimate eviction procedure carried on by the formal owner. On the other hand, as already said, the positive obligation to provide alternative solutions in favor of people at risk of homelessness should be borne by the State (and not by the private party). So, in the case at issue, the conflict between private individuals (the illegal occupier and the owner) cannot be solved simply prevailing one interest over the other, but considering the State as positively involved in the fulfilment of both interests at stake. In this perspective, it is necessary to investigate whether and under what conditions an enforceable obligation of the State can be configured, to determine when the de facto housing possession is worthy of protection and how to adjust the civil legal framework to this specific task.
B. Methodology, structure of the research and conclusions The first part of the thesis provided a reconstruction of the civil institutions of possession and detention (i.e. the factual powers over a good which are recognised and protected by Italian Civil Code). This investigation allowed analysing the different scholars' theories about possession and how the Italian case law applies them. Then I focused on the relevance of the property owner’s behaviour on the acquisition of possession by a third party. More to the point, I investigated how the acquiescence, tolerance or inertia of the owner in front of the interference by other individuals represent a legal criterion to determine which kind of possessory situation the third party has over the good.
The second part of the thesis is entirely dedicated to investigating the possession of the house. The investigation needs to consider the interference of human right to housing with the civil institution of possession. Thus, it started with a first section concerning the multi-level constitutional notion of the right of housing in Italian and international law sources (EU and ECHR) and its direct relevance in private possessory relationships, according to the national and international case law.
The final part of the research draws upon the entire thesis, tying up the civil law regulation of possession with the human right protection of the house. Once having defined how the constitutional and european protection of the housing right can have a direct impact on possessory situations, the concluding part concerns some housing cases where individual may be at risk of exclusion. The aim is investigating how the civil law regulation should be rethought according to the human right protection. The housing situation selected for the study can be distinguished on the basis of a different degree of security for the non-owning occupier and because of the different nature of the relationship between him/her and the owner: 1) de facto cohabitants outside marriage; 2) tenants and other personal rights holders; 3) urban squatters.
B.1. Cohabitation outside marriage The progressive growth in society of forms of cohabitation other than marriage led jurisprudence to give answer to the lack of their legal regulation. While in the past cohabitation outside marriage was considered by the civil law system as legally irrelevant – or even forbidden – in recent years the case law has gradually extended parts of family law regulation designed for married couple.
So, even the problem of qualifying the factual power exercised by the non-married cohabitant has been faced by some important statements of the Italian Supreme Court . For the aim of this research, it’s interesting to analyse the argumentation of the judges concerning the extension of possessory remedies, on the one hand, and the role played by good faith clause in determining when and how after the breakdown in the relationship the owner can fairly evict the other partner, on the other.
Regarding the first issue, the situation of cohabitant is qualified as detention and, consequently, protected by possessory remedies against third parties, the cohabitant owner, and his heirs as well: while in the past the non-owning cohabitant was considered just a “detentor for reasons of hospitality” (see above 2.2), thanks to the new interpretation in the light of constitutional principles of housing enhancement and pluralism of social groups de facto cohabitation is considered a detention worthy of possessory protection erga omnes.
As regard the second question, case law requires by the owner to give a period of notice before the exclusion, according to the partners’ economic condition, the duration of the cohabitation and other relevant factors.
B.2. Possessory actions for tenants and other personal rights holders The tenant’s situation as well as other personal rights holders is qualified as detention by the civil law. As already said, since his situation is based on a personal right title, he/she enjoys a less strong possessory protection: whereas the action against unlawful taking are provided, the action against disturbances belong exclusively to possessor. This unequal distribution of the means protecting de facto situation has been sharply criticized by scholarship , since it belongs to an outdated view about the role of right in rem and in personam in contemporary society. Nowadays, the exchange of wealth in bases on obligatory contracts as much as the contract transferring rights in rem in immovable property: the power over the good arising from the former has a socio-economic relevance that justifies the same possessory protection.
These implications are further confirmed by ECHR caselaw which – applying positive obligation doctrine – requires by the States to protect housing enjoyment even against private parties’ disturbances. This lack of protection of detentions based on housing aim would be filled interpreting possessory actions regulation in the light of ECtHR principles.
B.3. Urban squatting As some studies have found, the legal qualification of squatting changes according to the juridical context considered . While criminal law judges squatting as a crime in certain circumstances (see, for example, art. 633 Italian c.p. - Invasion of lands or buildings), the possessory regulation recognises the occupation of a house as an activity worthy of protection, and the housing perspective emphasises this phenomenon as a paradigmatic market failure example, in which the house is exploited by people who need it having no secure legal basis.
These different approaches coexist in the legal framework and sometimes the antinomy between different ways to conceive the squatter’s activity emerges in the case law. Indeed, the Italian Supreme Court (Criminal division) in some judgments has justified the occupation of buildings for housing aims as a necessity that excludes the criminal relevance of the act . The main argument for this interpretation is that since housing needs is protected as a fundamental right by the Constitution, it deserves to be considered in evaluating the criminal responsibility for building invasion. Even if rarely applied to exclude in concrete criminal sanction, this statement represents an important step in recognizing a direct impact of housing interests in changing the criminalizing paradigm of urban squatting.
In civil law perspective, the enforcement of housing right protection raises several questions about, firstly, the possibility to avail of a protection directly deriving from constitutional and international legal sources (i.e. in absence of a positive regulation that transposes constitutional principles) and, secondly, the possibility to limits the owner’s competing claims. The problem needs to be addressed distinguishing if the squatted building is owned by the State or a private individual.
About the eviction carried on by public authorities, according to the article 823 c.c., the State has a power of self-help (i.e. “autotutela amministrativa possessoria”) against unlawful takings of public domain goods. In practice, this means that public authority can evict squatters without the need to bring proceedings in an independent tribunal and to motivate his act as required by ECtHR caselaw’s procedural safeguard. This lack represents a potential violation of Convention that needs to be remedied by means of Italian Council of State statements more respectful of European Convention principles.
Regarding private buildings squatting, as abovementioned, the procedural and substantive safeguards of art. 8 ECHR are not applicable in the same way as in public squatting. However, while the private nature of the conflict of interests at stake does not allow to offer the same degree of protection in favour of squatters at risk of becoming homeless, that doesn’t mean the Stata is not equally entitled of positives obligation to avoid this risk: even if private owner has the right to recover his good, State must adopt measures to introduce in private eviction proceedings an effective control of homelessness risk by the judge and a power to activate a re-housing procedure.
