Natália Fioravanti Salvadori
Lawyer at Marcos Martins Advogados
Usucaption is a way of originally acquiring ownership of property and is also an important tool for regularizing real estate, especially when there are cases of irregular land division and dismemberment.
However, considering that the Judiciary is overflowing with lawsuits in its various instances, Brazil has seen the so-called crisis of access to justice since the last century.
In the case of judicial usucaption proceedings, unfortunately, the reasonable duration of the process is hardly ever verified, since, in addition to the specific temporal and documentary requirements, the law provides for a series of acts, often repetitive, permeated by the insistent search for the right defendants, sending of official letters, which make the procedural progress extremely slow, causing the process to drag on for years on end.
Aiming to provide an alternative to this situation, article 1.071 of the Code of Civil Procedure introduced the possibility of carrying out the usucaption procedure in Real Estate Registry Offices, i.e. extrajudicially. Extrajudicial usucaption seeks to shorten the time needed to regularize the property, which used to be done through the courts, enabling the owner to receive the property title more quickly and less expensively.
This is because the extrajudicial usucaption procedure excludes court fees and is therefore more economical for the owner of the property.
It is worth noting that the procedure carried out in a notary’s office does not require homologation by a judge, nor the need for intervention by the Public Prosecutor‘s Office, so extrajudicial adverse possession allows for significant gains for the requesting party who wishes to regularize their property by proving their ownership.
In addition, the extrajudicial usucaption procedure can be adopted for any type of usucaption, in other words, from extraordinary usucaption, in which it is necessary to prove possession for 20 uninterrupted years, to collective usucaption, in which only 5 years of possession is proven, as long as there is the consent of the property’s neighbors, that is, the owners of the properties surrounding the property to be usucaptioned.
Therefore, the interested party can apply for usucaption before the Real Estate Registry Office responsible for the property, accompanied by the necessary documents and represented by their lawyer, since, due to the complexity of the postulatory acts, it is mandatory for the party to be accompanied by a lawyer.
The essential documentation to be presented is pre-constituted proof of possession of the property by the applicant, in order to prove the time required for the usucaption that is to be recognized, which must be tame and peaceful, i.e. without there being any act by the owner during the entire period aimed at regaining possession of the property.
Furthermore, in order to prove the years of possession of the property, it is possible to draw up a Notarial Act, through which the Notary Public will attest to the applicant’s possession of the property. However, although this is a useful document, it cannot be drawn up for usucaption and the need must be assessed on a case-by-case basis.
In addition, the applicant may present a document that proves just title to the property, such as, for example, an instrument assigning rights over the property, as well as any proof of payment of taxes and fees on the property, contracts for the provision of services on the site, correspondence addressed to the applicant, among other documents that can attest to the permanence on the property for the time provided for by law, which, although dispensable, contribute to the success of the procedure.
In the case of adverse possession of real estate, it is essential to submit an ART, also known as a Technical Responsibility Certificate, with a descriptive memorial of the property, drawn up by a competent civil engineer, through which the Real Estate Registry Officer will verify the property’s adjoining and confronting parties, who will be summoned to express their consent to the adverse possession request.
Although the extrajudicial procedure only provides for the neighbors to be notified, any interested third parties, as well as the Municipal, State or Federal Treasury , may submit an opinion on the usucaption request, if they verify that the property is public, in which case the applicant’s claim will be blocked.
In the event of any objection to the usucaption request, the Real Estate Registry Officer must refer the extrajudicial procedure to the court, so that the process goes through the courts.
However, if the parties agree, the usucaption procedure will be concluded quickly, especially because of the way in which the property’s adjoining and confronting parties are summoned, since, unlike the judicial process, there is no personal summons in the extrajudicial procedure.
Therefore, the extrajudicial usucaption procedure proves to be fast, practical, economical and safe for regularizing the possession and ownership of real estate and furniture that may have some obstacles, and is an important legal means of promoting land regularization.
To find out more and see if your property can be regularized through extrajudicial adverse possession, please contact us. Marcos Martins Advogados is aware of this issue and is prepared to provide qualified legal advice to its clients.
