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Provisional Possession as a Real Right: Implications for Public Administration and the Real Estate Market


The provisional possession, recently recognized as a real right by Law No. 14.620/2023, has significant impacts on public administration and the real estate market. This change strengthens legal certainty in expropriation and administrative occupation processes while imposing new regulatory and asset management challenges. This article analyzes the evolution of this institute, its impacts on public administration, and its repercussions on the real estate sector, considering the new legal and jurisprudential provisions.


Provisional possession has always been a relevant institute in administrative and civil law, especially in expropriation situations and the granting of public property use.


However, its formal inclusion as a real right in the Civil Code introduces innovations in the relationship between public authorities and private individuals, enhancing its legal certainty and predictability.


1. Concept and Evolution of Provisional Possession

Provisional possession allows the government or certain private entities to temporarily hold a property before completing a definitive acquisition process. Its application mainly occurs in expropriations for public utility purposes and the granting of land use for social interest projects. With Law No. 14.620/2023, provisional possession is now recognized as a real right, providing more robust protection for the temporary occupant and better regulating its use.

2. Impacts on Public Administration

The legislative change has direct implications for public management, as it:


Enhances legal certainty for infrastructure projects and public works;


Reduces the risk of disputes over property possession in expropriation processes;


Requires more detailed planning of resettlement policies and compensations.


These factors make the institute more attractive for public administration while also necessitating greater transparency and control over its use.


3. Repercussions in the Real Estate Market

Provisional possession also affects the real estate market, particularly for:


Companies involved in concessions and public-private partnerships;


Investors who require security regarding property use;


Properties affected by public interest projects, which may see value changes due to the anticipation of possession.


The inclusion of provisional possession as a real right may also facilitate financing opportunities and provide greater predictability for the sector.

4. Challenges and Controversies

Despite its benefits, the new legislation presents challenges, such as:


Harmonizing with the rights of expropriated property owners;


Monitoring the proper use of provisional possession;


The risk of litigation over compensation and criteria for its application.


These aspects require a balance between public and private interests, ensuring that the new regulation is applied fairly and efficiently.


Conclusion

Recognizing provisional possession as a real right represents a significant advancement for real estate and administrative law. While it provides greater legal certainty for both public and private entities, it also introduces new regulatory and operational challenges.


Its successful implementation will depend on jurisprudential interpretation and alignment among the various stakeholders in the sector.

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