Some proceedings leave more than their outcome. This case arose from representing a client who had acquired by adverse possession property formally registered to a company later declared bankrupt.

The case handled by the firm

To assert ownership, a recovery claim was brought under Article 103 of the Italian Bankruptcy Law within the process for verifying claims against the estate.

The claim was dismissed by both the delegated judge and, subsequently, in the opposition to the schedule of liabilities, on the view that adverse possession had to be established before the ordinary court. This appeared consistent with the previous Court of Cassation approach, particularly Judgment No. 12736/2021.

Why challenge the previous approach

That approach was unconvincing from the outset. Adverse possession is an original acquisition based exclusively on possession and time, not a derivative acquisition subject to registration rules for enforceability against creditors.

The firm therefore appealed to the Court of Cassation, expressly requesting reconsideration of the earlier approach and explaining the systemic reasons for admitting recovery claims within bankruptcy verification proceedings too.

The Court of Cassation’s decision

In Order No. 11423 of 28 April 2026, the First Civil Division allowed the appeal.

The Court held that:

  • adverse possession is original acquisition based on possession as a legal fact and the passage of time;
  • the acquisition is enforceable against the bankruptcy trustee even without a title registered before the bankruptcy declaration;
  • the claim may follow Article 103 of the Bankruptcy Law, without separate ordinary proceedings;
  • verification of liabilities is compatible with establishing adverse possession and taking the necessary evidence, including on opposition.
‘Acquisition by adverse possession of real property included in a bankruptcy estate may be asserted against the trustee under Article 103 of the Bankruptcy Law, as adverse possession is an original means of acquiring rights in rem […] enforceable against the trustee even where the claimant had not obtained, before the bankruptcy declaration, a title enforceable against the trustee.’ [Translation of the Italian quotation]

The Court also explained that the bankruptcy declaration does not itself interrupt the adverse-possession period; interruption may instead result from a judicial claim for delivery or a proprietary action brought by the trustee.

A new principle and a professional lesson

The decision established a principle with significant potential impact on insolvency practice and protection of property rights.

The case shows how legal development also involves critical engagement with existing approaches. Case law is not immutable: where precedent appears inconsistent with the system, a lawyer’s task is to identify its weaknesses with technical rigour and sound arguments.

That is sometimes how a new legal principle emerges.