Usucapião is a legal mechanism that enables individuals to gain ownership of a movable or immovable asset through extended possession, as long as certain legal conditions are satisfied.
This involves the formalization and acknowledgment of land rights in cases where there is no official ownership title.
This article provides detailed information for lawyers working in the field about the requirements, modalities, and procedures regarding usucapião.
What does usucapio mean?
Usucapião is a method of obtaining ownership or other real rights to a property by maintaining continuous, peaceful, and uninterrupted possession for a specific duration, as long as the possessor fulfills the necessary legal conditions.
The usucapio is rooted in the principle of the social function of property as outlined in the Federal Constitution’s Article 5, section XXIII, and governed by the Civil Code’s Articles 1,238 to 1,244, as well as other relevant laws.
Art. 334 of the CPC provides a comprehensive overview of Conciliation Hearings or Mediation.
Is it the usucapione or the usucapione?
The accurate term used in the Civil Code is “of usucapião”, as specified in Chapter III, Section I, of the Acquisition of Mobile Property, under the heading “From Usucapião”.
This conforms to the grammatical and legal structure of the text.
How does the user function?
To obtain usucaption, the interested party must show adherence to specific legal criteria, which differ depending on the type.
The process typically involves these steps:
- It must be demonstrated that the owner has been using the property openly, continuously, peacefully, and without interruption for a specific period in order to establish ownership.
- The individual needs to collect necessary documents to show the required period of possession as mandated by the law, along with fulfilling other conditions like good faith and valid ownership in certain situations.
- The user may be asked to appear at the office through a legal or administrative process, as long as there is no objection from others.
Extrajudicial use: What is the process and what conditions must be met?
What conditions must be met for adverse possession?
To be approved, the user must fulfill the following fundamental criteria:
- The possessor must maintain continuous and uninterrupted ownership without forsaking it for the entire legal period.
- Possession must be carried out peacefully, without any opposition from the original owner or others.
- Not all types of possession require proof of good faith or rightful title, but having these conditions can make recognition easier in some cases.
- The minimum duration required for possession varies depending on the type of adverse possession and can range from 2 to 15 years.
- Property has a social function that requires it to be utilized for purposes like housing or economic activities.
What are the different methods of usucapio?
Several types of usucapio are governed by various laws, each tailored to specific circumstances.
Ordinary adverse possession:
- 10 years of uninterrupted, peaceful ownership with legitimate title and honest belief is required.
- Art. 1,242 of the Civil Code pertains to Legal Foundation.
Extraordinary Usability
- Requirements include 15 years of uninterrupted possession without the necessity of having a rightful title or acting in good faith.
- Legal basis: Article 1,238 of the Civil Code.
Urban special purpose:
- Ownership of urban property with up to 250 m2 for at least 5 years is required for personal residence, with no other properties under the owner’s name.
- Art. 1.240 of the Civil Code and Art. 183 of the Federal Constitution establish the legal foundation.
Special Rural Uscopião:
- 5 years of uninterrupted ownership of rural property with a maximum of 50 hectares for residential and production purposes is needed.
- Art. 1.239 of the Civil Code pertains to Foundation Legal.
Collective utilization.
- To qualify, you need to have owned a property in a city for at least 5 years where each owner’s share is less than 250 m2, and the land is occupied by individuals who cannot identify their specific lots and do not own any other property.
- Article 10 of the City Statute (Law No. 10,257/2001) establishes the legal foundation.
Adverse Possession Due to Abandonment of the Home:
- Indeed, meeting the requirement involves separation or abandonment of the home for a period exceeding 2 years.
- Legal basis: Article 1,240-A of the Civil Code.
How expensive is it to complete usucapio?
Below we outline the primary expenses incurred:
Procedural costs refer to the fees paid to the court for the advancement of legal proceedings, encompassing filing, distribution, and other necessary charges.
To complete the usucapio process at the property registration office following the court ruling, registration fees must be paid.
It may be required to conduct technical expertise to demonstrate the conditions for adverse possession, such as the duration of possession and the characteristics of the property. The expense for this expertise can vary based on the complexity of the case and the location.
Extra expenses may arise from obtaining additional documents like certificates and historical records.
What is the required duration for acquisition through usucapio?
Deadlines differ depending on the user’s mode.
- Special Urban and Rural utilization: 5 years.
- Ordinary usage typically lasts for 10 years, although it may be reduced to 5 years if accompanied by housing or substantial investments.
- Extraordinary use can last for 15 years, or 10 years if the individual resides in the property or makes improvements to it.
Is it required to assist with an act for the acknowledgment of adverse possession?
The usucapião can be requested through the extrajudicial process in the property register as long as there is no objection from third parties.
The judicial route is necessary in all other cases.
What obstacles hinder usucapione?
- Public property cannot be acquired through adverse possession.
- Possession that is violent, secret, or unstable does not fulfill the conditions for peaceful possession.
- Loss of required possession time results in a disruption of ownership.
Does the user cancel past property debts?
The user is not responsible for clearing property-related debts like IPTU or condominium fees. But the owner cannot be accountable for any debts incurred before taking possession.
Can adverse possession be acknowledged even if the property is not recorded in the land registry?
The lack of registration does not stop usucapione as long as the owner can show possession and fulfills legal conditions.
Advice for attorneys practicing usucapio.
- Gather all necessary documents, such as proof of ownership, payments, and witness statements, to support the request.
- Before beginning the process, it is important to consult with the Directory to verify any irregularities in the property registration.
- Attempt to resolve conflicts amicably before considering the non-legal option of negotiation.
- Crafting solid requests: incorporate pertinent legal precedents and principles.
- Evaluate which type of service is most suitable for the customer’s situation, taking into account the necessary timeframe and conditions.
- Technology like Legal AI, artificial intelligence designed for legal professionals, can be utilized to draft petitions and handle legal paperwork effectively.
The significance of usucapio in ensuring property rights and land regularization
Usucapião is a crucial legal tool for land regulation and acknowledgment of property rights, particularly in cases lacking formal ownership titles.
It is essential for lawyers to thoroughly grasp the requirements, methods, and processes involved in this type of property acquisition to provide effective guidance to their clients.
The right mode selection and following legal guidelines are crucial for the process to be successful.
The utilization of technology and user-friendly trading methods can enhance efficiency, facilitating conflict resolution in a more targeted manner.
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