Rural usucapião is a method of acquiring ownership of rural land by meeting specific legal conditions, even without a formal title.
Governed by Article 191 of the Federal Constitution and Articles 1.239 and 1.240 of the Civil Code.
Lawyers must comprehend the intricacies of this institution, particularly when counseling clients residing in rural areas for extended periods.
This article provides a comprehensive overview of rural adverse possession, covering its prerequisites, variations, and legal considerations. Take a look!
Understanding the process and basic regulations of adjudication.
What does rural usucapião refer to?
Legal foundation:
He who does not own rural or urban property, but possesses land in rural areas not exceeding fifty hectares for at least five years without challenge, making it productive for his work or family, and having his residence there, will gain ownership of the property.
The rural usucapião, as stated in Article 1,239 of the Civil Code, involves the potential to obtain ownership of a rural property through long-term, peaceful, and uninterrupted possession, provided that legal conditions are met.
This approach aims to enhance access to land for individuals who rely on it for their livelihoods, in line with public agrarian reform strategies.
Example in practice
A farmer started using a 20-hectare rural area eight years ago to grow food and raise small animals for his family’s subsistence.
During this time, he was not bothered by outsiders and did not have any other possessions of his own.
The farmer could support a rural usucapião process to seek recognition of the property under Article 1.239 of the Civil Code in that scenario.
Online seizure: How does it function and what are the time limits?
Rural usage needs
To delay a request for a rural user, certain conditions must be fulfilled.
- The possessor must be gentle and calm: They should not face resistance from the owner or others.
- The possession must be continuous and without interruption for a period of 5 years.
- The land should be utilized for farming, raising livestock, or extracting resources for economic purposes.
- The land area is restricted to 50 hectares and cannot be exceeded.
- The owner cannot possess any other rural or urban property.
- The social purpose of ownership: Possession should adhere to the principles of productive and sustainable utilization.
How extrajudicial use functions and its prerequisites.
How can I apply for rural adverse possession?
The process can be carried out either through legal proceedings or out-of-court methods. See below.
Rural court system
This process takes place in the Judiciary Branch and is required in cases of disagreements, uncertainties regarding the rights of individuals, or lack of agreement among the involved parties.
To initiate a legal action, it is essential to demonstrate that the owner fulfills the necessary legal conditions for rural usucapião as outlined in Article 1.239 of the Civil Code.
- Occupation of rural land with an area of 50 hectares or less.
- Exploring the workplace or area with the assistance of family to enhance productivity.
- Continuous and peaceful possession without opposition for a minimum of five years.
- The candidate is not allowed to possess any additional urban or rural property.
Crucial documentation:
- Description in great detail of the area that is being used.
- Plant description and monument marked by a certified expert (engineer or surveyor).
- Real estate registration certificates have been recently revised.
- Witness testimony and paperwork, such as tax receipts and lease agreements, provide evidence of ownership.
- The Public Ministry will assess the social importance and validity of the request.
- Prior consultation and thorough research with the property registration office.
After receiving the award, the next step involves notifying interested third parties (such as neighbors, creditors, and opponents) and the judge’s evaluation, which may include expert assessments or further actions as needed.
Rural Extrajudicial Utility
This process is conducted in the real estate registry office as outlined in the Civil Process Code of 2015 to streamline and speed up the recognition of adverse possession.
Benefits:
- Speed in connection to the legal procedure;
- No procedural expenses result in reduced costs.
- Less strictness is acceptable as long as the necessary legal criteria are met.
Extrajudicial rural use requirements:
- All conditions for rural legal representation also hold true.
- Agreement from all parties involved (both minor and interested) is required.
- Lack of conflicts or disagreement.
Documentation that is necessary.
- Plant description and memorial created by a certified expert, with permission from the concerned parties.
- Real estate record’s lack of conflicting information is confirmed by negative accuracy.
- The applicant’s statement regarding ongoing, peaceful, and unbroken possession.
- Unpaid property tax debts that are negative, if relevant.
Procedure: Process
- The applicant directly provides the required documents to the appropriate property registry office.
- The office officer performs an official analysis of the paperwork.
- If there are no fees or discrepancies, the officer documents the acknowledgement of usucapio.
- If disputes or uncertainty arise regarding ownership, the matter will be directed to the legal system.
Collective use: Definition, functioning, and prerequisites.
Practical advice for lawyers working in rural areas
Rural usucapião involves the careful organization and presentation of evidence.
Here are some important instructions.
Examine papers
- Check the ownership certificates and ensure there are no encumbrances on the property. Verify that the property is not public or involved in any ongoing disputes.
- Ensure that the topographical survey is accurate and complies with legal standards for descriptive plants and memorials.
- The history of ownership is recorded through documents such as receipts, informal agreements, and photographs to track the origin and duration of possession.
Invest in obtaining testimonial evidence.
- Identify appropriate witnesses who can confirm the peaceful and productive possession of the property.
- Guide witnesses to provide specific details about how long the property was possessed and how it enhanced its productivity.
Explore the alternative legal pathway
- Assess if the situation fulfills the conditions for extrajudicial adverse possession, such as the lack of resistance and the proper documentation.
Consider the societal role of the property.
- Demonstrate that the job satisfies the conditions of economic exploitation or sustainable utilization of the property.
- Land regulation plays a crucial role in promoting social justice and legal certainty within the community.
Pay attention to obstacles.
- Public real estate: Keep in mind that public goods cannot be utilized as stated in Article 183(3) of the Federal Constitution.
- Check for any ongoing possession or claim actions that could hinder the request in judicial disputes.
Requirements, steps, and useful tips for exceptional usage.
The significance of rural adverse possession.
Rural usucapião is a crucial legal tool that guarantees land access and regularization, particularly benefiting small-scale farmers who rely on it for their livelihood.
This procedure, overseen by the Federal Constitution and the Civil Code, enhances both legal certainty and supports the societal purpose of property.
Understanding this institution is crucial for lawyers to provide effective advice to clients, both in and out of court.
Following the necessary legal procedures, gathering strong evidence, and considering the most suitable options for each situation are crucial stages for successfully acquiring ownership of rural property.
Guide to the Law of Inquiline (Law 8,245/91) is available for reading.