Wladimiro Gasparri

Land, a Common Good? Containment of Land Loss and the Social Function of Private Property

  • Abstract

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The work deals with the theme of the loss of land to start reflecting again on the social function of private property. The importance of land as a resource locus of innumerable eco-systemic functions poses, in a specific manner, the question of the juridification of the interest of the community (and of individuals) in the ma intenance of its integrity and, therefore, in the containment of its loss. Its qualification in terms of 'common good' imposes a reflection on the significance that this qualification assumes in terms of legal land statute and on its prescriptive contents. The qualification of land-'common' good (coeval with the regulation of land loss) bears on the regulation of its possible uses and, in the case of private lands, directly involves the matter of the conformation and delimitation of the property right. First of all, it constitutes the first step for rethinking the very idea of the conformation of private property and, in particular, compels reconsidering the natural inherence of jus aedificandi and therefore of the right to landed property. The question is exceedingly vexed, but whatever regulation concerning the containment of land loss seems unable to not end up affecting the contents of the property right and, therefore, on that right - the right to build and, therefore, to obtain profitable real estate transformation - attributed to private property as an essential constitutive element thereof, the separation of which has been firmly denied beginning from Sentence No. 5/1980 of the Constitutional Court. The other aspect regards the renewed centrality of the social function pursuant to Art. 42(2) of the Constitution, which postulates an intrinsic limitation of ius excludendi alios, as a subject matter typical of the landowner situation, before the right of access recognized to 'anyone' who has an interest consistent with the eco-systemic utilities that the land-good is able to provide. The redistributive vitality of the 'social function' appears hinged, this time, upon the distinction between access, use and property: access to the fundamental utilities rendered by the good, that is to those traceable to constitutional values, must be recognized apart from ownership where this serves to guarantee the interest in enjoyment of the good beyond the forms of exclusive belonging. An 'ecological' redistribution that meets the need to create an environment (in a broad sense) suitable for promoting a good quality of life. The theme of the reduction of land loss raises questions about, in addition to the private property system, the structure and distribution of the power of planning. Through an examination of regional normative provisions, in particular, the author highlights the existence of a plurality of models characterized by both organic reforms of the governance of the territory that put at its centre the theme of land loss, and by the introduction of specific direct or indirect procedures limiting land loss and encouraging the reuse and regeneration of the existing building stock. Taken as a whole, they bring out how the regulation of land loss is no longer just a problem of protection and valorisation of farmland and of agriculture, but that specific regulatory action is necessary.

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