Harassment, disturbance and threat are concepts belonging to the right of things, under civil law.
The institutes of dispossession, harassment and threat are different forms of disturbance of the right to tenure. Each one implies a specific situation that requires different legal actions to resolve the issue.
the dispossession (or possessory dispossession) consists of the total deprivation of ownership of a good. Through it the possessor loses all contact with the spoiled good. It is also called violent dispossession, when the offense involves measures that make it impossible for the owner to recover the property.
Example: João invades Jorge's farm and surrounds the property, making it impossible for the owner to access the place.
Turbation is a minor offense to the right of possession. It consists of a partial dispossession in which the owner loses only part of the possession of a property, without losing contact with the disturbed property.
Example: João takes his horses every day to graze on the farm that is owned by Jorge.
The threat is just the imminence of a riot or disturbance. It is not, therefore, an offense committed, but only a justified fear of having the right of possession violated.
Example: Protesters gather in front of a public building and threaten to take over.
What are the appropriate actions in cases of dispossession, disturbance and threat?
The Brazilian Civil Code provides in its article 1210 that:
The possessor is entitled to be held in possession in the event of disturbance, returned in the event of dispossession, and insured against imminent violence if he is justly afraid of being harassed.
The legal measures applicable in cases of offense to the right of possession are called possessory actions. The appropriate possessory actions in each case are:
- In cases of dispossession: repossession action is applicable.
- In cases of disturbance: it is appropriate to maintain ownership.
- In cases of threat: prohibitory prohibition.
Especially in cases of partial invasion of land (which in theory would constitute turbation), the jurisprudence understands that the appropriate action is the repossession, considering that the owner's objective, after all, is recover the good.
The specifics between each possessory action are of little relevance given that the legal system provides for the fungibility among them, that is, the possibility of replacing one by another, in cases where the action filed is not technically correct. In this sense, the Code of Civil Procedure provides:
Art. 554. The filing of a possessory action instead of another will not prevent the judge from knowing the request and granting the legal protection corresponding to the one whose presuppositions are proven.
How are possessory actions processed?
According to the Code of Civil Procedure, possessory actions follow the common procedure. However, if a lawsuit is filed within a year of the disturbance or dispossession, the procedure will be summary, provided for in Articles 560 and 566 of the Code of Civil Procedure. In these cases, the plaintiff of the possessory action may require, in addition to the recovery, maintenance and security of the thing:
- the conviction for damages;
- the indemnity of the fruits;
- the imposition of the necessary measure to avoid further disturbance or encroachment;
- compliance with the provisional or final guardianship (anticipation of the author's request);
It is up to the plaintiff of the possessory action to prove his right of possession, the existence and the date of the disturbance or dispossession, as well as the continuation of its possession in cases of maintenance action or loss in cases of action of reintegration.
If the initial petition is properly instructed, the judge will grant the request in an injunction (without hearing the defendant). Otherwise, the judge will designate a hearing at which the plaintiff will justify himself and the defendant will also be heard. If the judge finds the justification sufficient, he will grant the request.
See too:
- Scourge
- Civil right
- Civil Procedural Law