Put: Vitor Antony Ferrari and Ivan Kubala
In Brazil, the understanding has been consolidated that an heir can acquire property from the inheritance through adverse possession, as long as all legal requirements are met. In other words, despite this right existing, it does not mean that if an heir remains in the property that is the object of the inheritance for a certain period of time, he will automatically be able to acquire property through adverse possession.
Normally, the heir who remains in possession of a property will exercise mere detention, that is, although he is the owner, as there are other owners (other heirs) — legal condominium relationship for the undivided art. 1,791, sole paragraph, of the CC/02) —, it is assumed that they only gave him a precarious occupation permit, which may be revoked at any time.
In fact, upon the death of the author of the inheritance, the assets are transferred to the heirs, so that all become possessors and owners until the division of assets is made. However, the heir who remains in possession of a property that is the object of the inheritance cannot be at the mercy of the other heirs, especially when they simply stop using, disposing of or enjoying the asset, even creating obstacles to the opening of an inventory and the division of assets.
In this context, anyone who exercises quiet and peaceful possession of the inherited property, as if they were the exclusive owner of the asset, for the period defined by law, without opposition from the other heirs, must be considered the legitimate owner of the property.
As seen, for such a phenomenon to be recognized, it is necessary to fulfill the formal requirements of art. 1,238 of the CC/02, which are:
- The gentle and peaceful possession of property;
- Uninterrupted possession for more than 15 years;
- The waiver of just title and good faith.
In this way, it is sufficient for the possessing heir to exercise possession over the real estate, with animus domini, without opposition from third parties, for a period of 15 years (uninterrupted, as stated above), so that extraordinary usucaption is recognized, with the acquisition of the property by the heir.
The understanding already has a favorable position from two Panels (Third and Fourth) of the Superior Court of Justice (STJ)[1], but the State Courts still have differences of opinion on the matter.[2]
In fact, this is a sensitive issue that involves different institutes (adverse possession and inheritance), so it will always depend on the analysis of the specific case. Due to this and the new extrajudicial modality, the interested party may encounter greater resistance from Notaries and Real Estate Registration Officers in accepting the administrative adverse possession of property subject to inheritance, which is why it is recommended to seek guidance from professionals who work in the area for analysis and better guidance of the case.
[1] REsp 1631859/SP and AgInt in AREsp 1527409/RN
[2] Appeal 1002215-34.2014.8.26.0068