Usucapion is the right that a citizen acquires in relation possession of a movable or immovable property as a result of of using this for a certain time.
In order for this right to be recognized, certain prerequisites provided for by law must be met, specifically in the Civil Code and in the Brazilian Constitution.
You fundamental prerequisites for acquisition are: the possession, for a certain time of the movable or immovable property, and that the possession is uninterrupted and peaceful.
Types of adverse possession
Brazilian law provides five modalities of adverse possession of real estate:
Ordinary Usucapion
It is characterized by peaceful and unopposed ownership by the owner, and depends on fair title and good faith.
In this case, possession must be characterized by the accumulation of the following factors:
- It happened quietly and peacefully;
- Uninterruptedly (continuously);
- No opposition from the owner;
- For a period equal to or greater than ten years.
However, this period can be reduced from ten to five years when there is evidence that the owner acquired the property for consideration, with registration later canceled and if:
- The owner has made economic and social investments in the property;
- The owner has constituted the property as his usual abode.
Extraordinary Usucapion
It does not depend on fair title or good faith. It is characterized by possession that occurs with the owner's spirit, without violence and opposition, has been uninterrupted and has a duration equal to or greater than 15 years.
The term may be extended from 15 to 10 years if the owner has constituted the property as his usual address or if he has carried out productive works in it.
special possession
It can be urban, individual or collective, or rural;
In all these modalities the assumptions are the same, and the possession must have taken place in a peaceful manner; uninterruptedly; without opposition from the owner and for a period equal to or greater than five years.
At individual urban possession the properties must have an area of up to 250 square meters, and the owner must have used the property to house himself or his family. In this case, fair title is not required, and good faith is presumed. However, the owner cannot own other properties, rural or urban.
THE collective urban modality it is very similar to the urban individual, with the difference that the properties will have an area greater than 250 square meters and the area equivalent to each owner must be identifiable.
In the case of rural special usucapion, it can be purchased by an individual who:
- do not own rural or urban properties;
- own the property as if you owned it for five or more years without interruption and without dispute from the owner;
- if the property's area does not exceed 50 hectares;
- if you live in the property or earn a living through your work or family. In this case, good faith is presumed, with no need for a fair title.
Possession of movable property
It is when the individual can add the possession of his predecessors to his possession, or also be subject to the application of adverse possession in the future.
family possession
As of June 16, 2011, a law came into effect that indicates a new modality of adverse possession: the family possession.
Pursuant to article 1.240-A, the spouse may acquire adverse possession if:
- the abandoned person does not own another property or has previously enjoyed the law;
- has remained in the property for two years without interruption and without opposition from the ex-partner;
- the property has up to 250 square meters.
In this mode - also known as homelessness - the abandonment must be voluntary and without justification, and the person who intends to usucapir must demonstrate that this has happened.
A request for family adverse possession can only be requested by individuals who have separated or who were abandoned after the creation of the article.
See also: the meaning of Disposal of Assets.