Milena Paternosti Sabbag
Lawyer at Marcos Martins Advogados
With a view to speeding up claims, the New Code of Civil Procedure provides that the request for adverse possession of real estate can be made before the Real Estate Registry Office of the district in which the property is located, through a lawyer, provided that there is no dispute over the property.
The provision in article 1.071 facilitates and expands the practice of administrative usucaption, previously provided for in the Minha Casa, Minha Vida program (law 12.424/2011).
Usucaption is the way of acquiring ownership of movable or immovable property after exercising long and uninterrupted possession, for periods specified by law.
Today, the law provides that a usucaption request can be made through extrajudicial or judicial channels. If the request is made through the administrative route and is denied by the Property Registry Officer, the plaintiff can still sue in court. The same happens when one of the interested parties who has been notified of the usucaption request objects.
The interested party must submit the usucaption request in a reasoned manner, in addition to attaching the following documents: notarial minutes drawn up by the notary attesting to the length of possession of the applicant and their predecessors; a plan and descriptive memorial signed by a legally qualified professional; negative certificates from the distributors of the location of the property and the domicile of the interested party; just title (a document that demonstrates the acquisition of possession of the property) or any other documents that demonstrate the origin, continuity, nature and length of possession, such as payment of taxes and fees levied on the property.
Once the petition has been received and duly instructed, the Registry Officer will proceed to record it in the protocol book and register it. If any documents are missing, a new reply will be sent to the interested party so that they can arrange for them to be regularized and, if the signature of any interested party is missing from the plan, the Officer will notify them so that they can comment/regularize within fifteen days.
Silence is read as disagreement. This means that the holder of the right in rem is not obliged to go to the registry office to express their disagreement. Their silence is enough for the request for extrajudicial adverse possession to be rejected.
The Registry Officer must also notify the Public Treasury, whether municipal, state or federal, to file any objections within the same fifteen-day period. In addition, the Registry Officer must publish a notice in a widely circulated newspaper, thus allowing any interested third parties to be informed, who may express their opinion within 15 days.
If the application has been duly instructed and no disagreements have been raised, the registrar will register the acquisition of the property, opening the registration if necessary.
In the event of a challenge to the request for extrajudicial recognition of adverse possession, filed by any of the holders of rights in rem and other rights registered or recorded in the registration of the property being adverse possession and in the registration of the adjoining properties, by any of the public entities or by any interested third party, the official must refer the request to the competent court in the district where the property is located, and it is up to the interested party to adapt the request to the judicial process.
The extrajudicial usucaption procedure does not require the participation of the Public Prosecutor’s Office or judicial approval. Its great advantage is its speed and cost. Therefore, if the interested party has all the documentation in order, presenting it at the Real Estate Registry Office is the best option, subject to payment of the registry fees.
Going to the courts is not only extremely time-consuming, but it can also be costly, especially when there is a need for an expert to ascertain the exact measurements of the property or to establish the boundaries and point out the adjoining properties.
Thus, when there is no consensus on the factual situation or in cases where the owner of the property is not located, the only option left is the courts.
Extrajudicial usucaption is yet another way of making the constitutional right to property effective more quickly. It is seen in a positive light as it reduces bureaucracy and relieves the Judiciary, although its application is limited.
