Who Prevails in the Distribution?
A Guide Through the Civil Code and the Crisis and Insolvency Code (CCII)
In the realm of security interests over assets, the widely held belief that a first-ranking mortgage guarantees absolute priority constitutes a technical myth that must be dispelled.
Legitimate grounds for preferential treatment exist that, by operation of law, "override" even the most diligent mortgage creditor.
With the implementation of the Crisis and Insolvency Code (Codice della Crisi e dell'Insolvenza, "CCII") and the recent clarifications rendered by the Court of Cassation (Corte di Cassazione), the framework governing the ranking of claims has become an essential area of analysis for every legal professional.
The guiding principle is enshrined in the second paragraph of Article 2748 of the Italian Civil Code (*c.c.*):
"The special immovable privilege (*privilegio speciale immobiliare*) prevails over the mortgage (*ipoteca*), unless the law provides otherwise."
This statutory "supremacy" renders the privileges of opposing parties formidable instruments in both enforcement proceedings (*procedura esecutiva*) and insolvency proceedings (*procedure concorsuali*).
In determining the order of distribution of proceeds from the sale of real property, three critical categories must be distinguished:
Article 2770 c.c.
These bear ontological priority in the distribution hierarchy.
They represent the costs incurred in the common interest of all creditors for the preservation or expropriation of the property (spese di giustizia).
These include:
State claims for direct taxes (tributi diretti) such as IMU/ICI and related surtaxes
Indirect taxes linked to the immovable property
Contributions for land reclamation works (bonifica)
Royalties for water concessions (concessioni di acque)
These claims are satisfied immediately after legal costs and before the mortgage.
Article 2775-bis c.c.
In cases where a preliminary contract (preliminare di vendita) has been registered (trascritto), the claim for the return of deposits (acconti) enjoys a special privilege.
Important Limitation (Sezioni Unite):
The privilege does not prevail over mortgages registered before the registration of the preliminary contract.
Article 224 of the CCII has harmonized these rules within insolvency proceedings.
Massa Immobiliare
Where mortgages and special privileges exercise their specific preferential rights.
Collocazione Sussidiaria – Article 2776 c.c.
A mechanism permitting claims such as employment or social security claims to "attach" to the immovable property when the movable assets prove insufficient.
Provided they remain subordinated to secured creditors.
Today, the bankruptcy trustee (curatore) must effect a clear separation between these two distinct categories.
Approaching an immovable property distribution (riparto immobiliare) without a comprehensive checklist of applicable privileges constitutes professional risk.
Priority is almost never automatic; it depends upon:
Navigate complex banking disputes with professional guidance. Avvocato Carlo Carta provides expert analysis on immovable property privileges, mortgage litigation, and insolvency matters.