By: Vitor Antony Ferrari, Ivan Kubala

Usucaption is the original form of obtaining property, since there is no legal link between the former owner and the new one. It involves obtaining property, usually real estate, as a result of the time in which it was occupied in a peaceful and quiet manner, and there may or may not be a fair title, such as a purchase and sale agreement or the famous “drawer contract”, or not. It is important to note that the person who acquires usucaption of the property must have the intention of becoming the owner and taking possession of the property. Usucaption is based on the principle of the social function of property, which is why, by giving function to property abandoned in a peaceful and quiet manner, without being interrupted, the invader becomes the owner.

There are several forms of usucaption, which differ in terms of the time of occupation, possession of a fair title or not, area of the property occupied and quality of the asset, whether it is movable or immovable, since although it is not common, it is possible to usucaption movable property.

Extraordinary usucaption provides that the property must be occupied in a quiet and peaceful manner for at least 15 years, without the need for a fair title.

If the occupant transforms the property into his/her habitual residence or carries out infrastructure works on it, the term is reduced to 10 years.

In the case of ordinary usucaption, the owner must have the title in good faith, and the term is also 10 years.

Special usucaption is subdivided: there is pro-labore usucaption, acquired when the occupant exercises possession of rural property for at least 5 years, in a calm and peaceful manner, using it as his or his family's home; urban, acquired when the occupant exercises possession of urban property not exceeding 250 m2, in a calm and peaceful manner for at least 2 years without having another property in his name.

There is also the usucaption of movable property, characterized by the continuous and uncontested possession of movable property for 5 years, regardless of having a just title or exercising possession in good faith.

If the possessor has a fair title and maintains possession in good faith, he will be guaranteed the right to the property within 3 years.

Usucaption exists to protect the right to the social function of property and ensure that it is properly used by those who have the will to take care of it.

This is a protection of the right to property and is the right of the occupant. In order to obtain the legal transfer of property, specific legal action is required, and the involvement of qualified lawyers is essential, who will argue the specific type of adverse possession and produce the necessary evidence to support this thesis.

With the collaboration of Luis Felipe Meira Marques Simão