Il nucleo delle situazioni possessorie nel diritto inglese

A long line of authorities and legal writings has historically developed itself over one of the most controversial and fascinating fields of English private law. As a matter of fact, the law of possession in the common law has led to a number of researches aimed at finding out, in the first place, whether the origin of English possession traces back, or not, to Roman “possessio”. In this regard a large number of qualified authors in the late 1880’s have concentrated on the subject, mostly availing themselves of the eminent contribution of German philosophers and jurists. But the English common law has always manifested a genuine, autonomous spirit in the development of the basic features of possession, starting with the indication of the necessary co-existence of a material and a mental element. Also judicial decisions have played a decisive role in the setting up of the conditions which make it possible for a factual relationship with a given object to ripen into one capable of being recognized and protected by the law. From this point of view it becomes apparent that the characteristic form of English possession, called adverse possession, contains all the fundamental elements whereby a de facto relation gets relevant in the eye of the law.On the other hand, the very fact that a paper owner may run the risk of losing his title to a simple occupant of his land (a squatter according to the common terminology) through the mere lapse of time has prompted a legislative reform, the Land Registration Act 2002, which has strengthened the position of the owner. At the same time this change of attitude seems to have re-assured the Grandchamber of the European Courts of Human Rights as to the compatibility of the English system of adversary possession with the principles enshrined in art. 1 of Protocol 1 of the European Convention on Human Rights. The present study deals with all these aspects concluding that adverse possession gives rise to an institute and a discipline which are peculiar of the English law of possession and explains its fundamental characters so as to become its most faithful representation.