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Possession and Property: Differences, Types and Consequences from the Perspective of STJ Jurispruden

Updated: Aug 8, 2023


This scientific article addresses the differences between possession and property, focusing on species and consequences, in the light of legislation, jurisprudence of Brazilian courts and the position of the Superior Court of Justice (STJ). In addition, the concept of tolerance and the distinction between regular tenure and precarious tenure will be explored, elucidating their legal impacts.


This article aims to analyze the differences between possession and property from a legal perspective, presenting their species and consequences, with emphasis on the jurisprudence of Brazilian courts, notably the Superior Court of Justice (STJ). The concept of tolerance and the distinction between regular and precarious possession will also be addressed, highlighting its effects in the legal field.


1. Possession:

Possession consists in the actual exercise of power over a thing, with the intention of having it as yours. It can be classified into direct possession, when there is physical contact and occupation of the property, and indirect possession, when someone holds power, even without physical interaction with the property. Furthermore, it is important to mention the existence of regular possession and precarious possession, the latter characterized by the absence of a legitimate title for the exercise of possession.


2. Property:

Property is the broadest right that a person can have over a good, giving him the power to use, enjoy, dispose of and claim the thing. It is an absolute right, constitutionally guaranteed and provided for in the Civil Code. Unlike possession, ownership gives the holder exclusivity and full powers over the property.


3. Differences and Consequences:

The differences between possession and property relate to the powers exercised over the good. While possession is characterized as a de facto power, property constitutes a right. In addition, tolerance is a key element in distinguishing regular tenure from precarious tenure. Regular possession is exercised with the owner's consent, characterizing a concession or permission relationship, without implying the transfer of property rights. Precarious possession, on the other hand, is exercised without authorization or legitimate title, and can be temporarily maintained by the owner's will, but, at any time, it can be withdrawn.


4. Tolerance and Precarious Tenure:

Tolerance is an important factor in differentiating between regular tenure and precarious tenure. It refers to the owner's acceptance of allowing another person to occupy his property, even without express authorization. This tolerance may be expressed through an informal or tacit agreement, and may be revoked whenever the owner so desires. In this sense, precarious possession is established as a fragile condition, subject to termination at any time, without the need for a judicial process.


5. STJ Jurisprudence and Positioning:

In the jurisprudential field, especially in the STJ, there are numerous precedents on cases involving the differentiation between possession and property, as well as tolerance and precarious possession. The STJ has positioned itself in the sense of considering the existence of an informal or tacit occupation agreement, when the owner's tolerance is demonstrated, recognizing the precarious nature of this possession.


Conclusion:


Understanding the differences between possession and property is essential for the proper application of civil law. In this context, the analysis of jurisprudence and the position of the STJ provides an in-depth view on the subject, especially when considering the existence of tolerance and the distinction between regular tenure and precarious tenure. It is essential that legal practitioners and parties involved in disputes have up-to-date knowledge of STJ case law, ensuring a better understanding and interpretation of the rules, as well as the fair resolution of disputes.

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