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The Promise of Purchase and Sale of Land without Approval from Public Bodies: Legal Aspects

Updated: Aug 8, 2023


The promise to buy and sell land without approval from public bodies is a complex issue in the field of real estate law, raising questions about its validity and legal consequences. In this article, we will address in a concatenated and legal way the main points related to this topic, presenting arguments and analyzes based on jurisprudential understandings.


1. Legal Basis:

To understand the promise to buy and sell land without approval, it is necessary to refer to the Brazilian Civil Code, more specifically to article 1.417. This legal device establishes that the promise of purchase and sale is a preliminary contract that creates obligations for both parties, with a view to a future purchase and sale agreement. However, the validity of this contract is subject to the approval of the land by the competent bodies.


2. Precarious Possession:

In the context of promising to buy and sell land without approval, both buyer and seller face poor tenure. This means that they are in possession of the land but do not have the legal documentation that proves their ownership. Therefore, both are in a situation of uncertainty regarding the legal security of the property.


3. Temporal Lapse and Usucapion:

In cases of promise to buy and sell land without approval, the buyer may seek the acquisition of the land through the institute of adverse possession. It is a means of acquiring property through prolonged possession of the asset, as long as the legal requirements are met.


However, it is essential to note that the time period required for adverse possession varies according to the type of adverse possession applicable to the case. In the case of land without approval, extraordinary adverse possession may be a viable option, demanding the quiet and peaceful possession of the land for at least 15 years.


4. Regularization and REURB:

In turn, the seller of land without approval has the possibility of seeking regularization with the competent bodies. An alternative is the Urban Land Regularization (REURB), provided for in Law No. 13,465/2017.


The REURB aims to promote the legal regularization of informal urban centers, providing legal security to the occupants of these lands. Through this procedure, the seller can obtain the necessary approvals and documentation to regularize the land and, consequently, make the purchase and sale promise valid.


5. Position of the STJ:

With regard to the statute of limitations and decay in the promise to buy and sell land without approval, there is no specific position adopted by the Superior Court of Justice (STJ). It is up to the lower courts to analyze previous judgments of the STJ and apply these precedents in similar cases.


It is important to emphasize that each case must be treated individually, considering its particularities and the arguments presented by the parties involved.


Conclusion:


The promise of buying and selling land without approval from public bodies brings legal challenges and uncertainties as to its validity. Both the buyer and the seller find themselves in precarious possession, without full legal security over the ownership of the land.


The buyer may seek acquisition through adverse possession, provided that the legal requirements are met, such as the minimum period of peaceful and peaceful possession. On the other hand, the seller can seek to regularize the land through the REURB, obtaining the necessary approvals and documents.


It should be noted that the position of the STJ in relation to the prescription and decay of the promise to buy and sell land without approval is not defined, demanding the analysis of previous cases by the lower courts.


In short, the promise to buy and sell land without approval requires a careful analysis, considering the legal basis, the jurisprudence, the time lapse necessary for the acquisition by adverse possession, the possibility of regularization by the REURB and the lack of a definitive position of the STJ.

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