Adverse possession is a significant legal concept in Brazilian law, allowing the acquisition of ownership of movable and immovable property through continuous and prolonged use, along with other legal requirements. Among the various types of adverse possession, family adverse possession stands out, introduced by the Civil Code of 2002 and regulated by Law No. 12.424/2011.
This type aims primarily at the regularization of urban properties used as family residences in situations where one of the spouses or partners abandons the home. This article explores the concept of family adverse possession, its characteristics, requirements, and the courts' interpretation on the subject, highlighting its importance as a tool for housing protection and social justice.
1. Concept of Family Adverse Possession
Family adverse possession is a special form of adverse possession that allows the acquisition of ownership of an urban property used as a family residence, provided the legal requirements are met. According to Article 1.240-A of the Civil Code, introduced by Law No. 12.424/2011, this type applies when:
-The property is up to 250 square meters;
-The possessor has used the property as a residence for an uninterrupted period of two years;
-The property was abandoned by the other spouse or partner;
-The possessor is not the owner of another urban or rural property.
-This type of adverse possession seeks to protect the housing rights of the spouse or partner who remains in the property, granting them ownership in the face of the prolonged and unjustified absence of the other.
2. Characteristics of Family Adverse Possession
The main characteristics of family adverse possession include:
Social Character: Family adverse possession has a strong social function, as it aims to ensure housing rights and avoid legal insecurity for those who remain in the property, especially in cases of abandonment.
Original Acquisition of Ownership: Adverse possession grants the possessor an original title of ownership, meaning the new owner does not inherit any charges or debts from the previous owner, unless these are linked to the property itself.
Urban Property: Family adverse possession is limited to urban properties up to 250 square meters, differing from other types of adverse possession that may include rural properties.
Exclusivity:Â The possessor cannot own another urban or rural property, reinforcing the protective intent towards housing, ensuring that family adverse possession benefits only those who genuinely need the property as a residence.
3. Requirements for Family Adverse Possession
For family adverse possession to be recognized, several requirements must be strictly met:
Uninterrupted Possession for Two Years: The possessor must prove that they have used the property as their residence for at least two years continuously and without opposition from third parties.
Abandonment of the Home by One of the Spouses or Partners:Â Family adverse possession presumes the abandonment of the home by one of the spouses or partners. This abandonment must be unjustified and result in the prolonged absence from the property.
Residential Purpose: The property must be used as the possessor’s and their family’s residence. Properties used for other purposes, such as commercial or industrial, do not qualify for family adverse possession.
No Ownership of Another Property: The possessor must not own another urban or rural property, reaffirming the goal of ensuring housing rights for those who do not own another residence.
4. Procedures for Requesting Family Adverse Possession
The process for recognizing family adverse possession can be conducted judicially or extrajudicially, according to current legislation:
Judicial Route:Â The interested party must file an adverse possession action in court, presenting evidence that demonstrates compliance with legal requirements. During the process, the spouse or partner who abandoned the property, as well as any adjoining owners and interested parties, must be cited.
Extrajudicial Route:Â Law No. 13.465/2017 introduced the possibility of extrajudicial recognition of adverse possession, conducted directly at the Property Registry Office, provided there is no opposition from third parties. For this, the applicant must present all documents proving possession and other requirements, along with a plan and descriptive memorandum of the property signed by a qualified professional and adjoining owners.
5. Jurisprudence and Courts' Interpretation
The courts’ interpretation of family adverse possession has been largely favorable to consolidating ownership in favor of the spouse or partner who remained in the property. The Superior Court of Justice (STJ) has reaffirmed the importance of protecting housing rights, recognizing family adverse possession as a means to prevent social vulnerability arising from abandonment.
Moreover, the jurisprudence has addressed issues such as:
Proof of Abandonment: Courts require that the abandonment of the home be effectively proven; mere temporary or consensual absence of the spouse or partner is insufficient.
Access to Justice and Land Regularization:Â Family adverse possession is seen as a mechanism that facilitates land regularization, allowing individuals in vulnerable situations to obtain ownership of their residence, contributing to social inclusion and legal security.
6. Precautions and Important Considerations
Although family adverse possession offers significant protection, it is crucial for interested parties to take certain precautions:
Complete Documentation: It is essential to gather and maintain all documentation proving possession, abandonment, and residential use of the property. This includes contracts, receipts, utility bills, and any other documents showing a link to the property.
Legal Advice: The guidance of a specialized lawyer is essential to ensure all legal requirements are met and to handle any potential disputes or litigation that may arise during the adverse possession process.
Attention to Registration: After the recognition of adverse possession, it is imperative to register the property at the Property Registry Office. This step finalizes the acquisition of the ownership title and ensures the full legal effectiveness of the adverse possession.
Conclusion
Family adverse possession is a crucial legal tool for land regularization and housing protection in Brazil. By allowing the spouse or partner who remained in the property after the other’s abandonment to obtain ownership, the legislation seeks to promote social justice and ensure the right to decent housing.
However, for family adverse possession to be effective, it is necessary for interested parties to be aware of the legal requirements and procedures, and to take all necessary precautions to avoid future problems. The jurisprudence has reinforced the importance of this institute, but also highlights the need for rigorous proof of facts, making adequate preparation for the process essential.
Family adverse possession represents an important achievement in family and succession law, consolidating itself as a vital mechanism for protecting housing rights in situations of vulnerability.
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