Trespassing on another's property, whether through usurpation or ouster, entails a range of legal implications, particularly concerning the right of possession and compensation for damages caused.
In Brazil, the protection of property rights is enshrined in the Federal Constitution and Civil Code, which provide mechanisms for defending and compensating for losses caused by third parties who wrongfully take possession of someone else's property.
Fundamental Concepts: Usurpation and Ouster
Usurpation occurs when someone unlawfully occupies a property, altering its purpose and benefiting from its advantages without any rightful claim. A typical example is the unauthorized extraction of natural resources or economic exploitation of property belonging to someone else.
In contrast, ouster is characterized by the violent or clandestine removal of the legitimate possessor from a property, resulting in the direct loss of possession of the property. This conduct involves the use of force or deceit, preventing the rightful owner or possessor from exercising their rights over the property.
Legal Protection of Property
The right to property, constitutionally protected under Article 5, Clause XXII of the Federal Constitution, is upheld by Brazilian law. The Civil Code (Law No. 10.406/2002), in Article 1.228, grants the owner the right to use, enjoy, and dispose of the property, as well as the right to reclaim it from anyone wrongfully possessing or holding it.
Additionally, the Civil Code provides for the defense of possession through possessory actions, such as the interdito proibitório (Article 932), actions for the maintenance of possession, and actions for the reinstatement of possession (Article 926). In cases of ouster, the main procedural tool is the reinstatement of possession action, which aims to restore the possessor's rights by removing the trespasser.
Compensation for Usurpation and Ouster
Trespassing may give rise to the obligation to compensate the property owner for the losses suffered. In cases of usurpation, the responsible party must repair the material damages caused, such as the value of the fruits (products or income from the property), along with any other losses and damages arising from the unauthorized occupation. In cases of ouster, compensation may include not only material damages but also moral damages, given the violation of possession and the disturbance caused by the loss of peaceful enjoyment of the property.
Brazilian jurisprudence has shown a favorable stance toward compensation in such cases. The Superior Court of Justice (STJ) has established the understanding that in situations involving trespass and unauthorized exploitation of property, the owner is entitled to proportional compensation for the period of unlawful possession, including lost profits and loss of use of the property. In some cases, moral damages are also recognized, especially when a grave violation of the owner's fundamental rights is proven.
Legal Procedures and Possessory Actions
An owner or possessor who has had their property trespassed upon may resort to possessory actions to recover the property and seek compensation for damages. In cases of ouster, a reinstatement of possession action should be filed under Articles 926 and following of the Code of Civil Procedure. This action aims to restore possession to the legitimate possessor and may be accompanied by a request for an injunction for immediate eviction of the trespasser.
Ouster and usurpation may also constitute criminal offenses, as the crime of possessory ouster is provided for in Article 161 of the Penal Code, which prescribes detention for those who, through violence or threats, invade another’s property.
Conclusion
Trespassing on another’s property, whether by usurpation or ouster, is a direct violation of the fundamental right to property. Brazilian law provides effective instruments for protecting these rights, whether through possessory actions or damage compensation.
Compensation to the affected property owner is a right guaranteed by law and jurisprudence, aiming to restore the losses caused by the trespass and to ensure the individual’s property rights are preserved.