In Brazil there are at least 18 million urban homes occupied irregularly, according to the Ministry of Cities, and the Northeast and Southeast regions concentrate the largest number of home areas built in this condition.
What few people know is that it is possible to regularize the property through usucapião, a form of ownership described in the Federal Constitution and the Civil Code. This term, which originated in Latin, refers to the right to possess movable or immovable property for a certain continuous period of time, which varies from five to 15 years, and without any dispute or link to a previous owner. In special cases, this period is valid from two years, as long as the property is not public property.
It is important to benefit from usucaption in order to regularize your urban or rural property before the law, allowing you to enjoy various benefits such as being the owner, taking out bank loans, selling the property and carrying out any other operation.
There are more than 35 usucaption hypotheses and before you know which one to use, it's important to know why the property isn't in your name. This may be due to an ongoing lawsuit or an inventory, for example.
Extraordinary adverse possession
Extraordinary adverse possession, provided for in article 1.238 of the Civil Code, is considered the most common form of adverse possession in Brazilian law because it is the simplest in qualitative terms. It can be used if you have been in the property for more than 15 years, acting as if you were the owner (animus domini), and you want the property to be registered in your name. Under the Civil Code it is possible to reduce this time to ten years.
Extraordinary adverse possession can be used when the property has been lived in during this period, without interruption, and the resident has acted as if they were the real owner, carrying out works and renovations that have led to improvements and increased the useful life of the property. It is also valid when there is a “sale by word of mouth”, without any contract or document proving payment.
Ordinary adverse possession
Ordinary adverse possession is generally used when there is only a purchase and sale agreement, which does not make you the owner of the property and only the possessor. This is the so-called “drawer's agreement”, made between the owner of the property and the buyer. In a usucaption action, this contract will serve as evidence for the judge to give you ownership.
Provided for in article 1.242 of the Civil Code, However, ordinary adverse possession requires more requirements than extraordinary adverse possession. In this case, the legislation requires not only 10 years of uninterrupted possession and animus domini, but also good faith, which is the possessor's belief that the property has no other owner, as they know that the property is legitimately theirs.
When to apply for usucaption
There are several possible scenarios for the acquisition of movable or immovable property by adverse possession.
They are:
- After five years of ownership of the property, the possessor may not own another property and may not own any property:
- Rural: with less than 50 hectares, productive
- Urban: of less than 250m², used as a dwelling.
- It will be 10 years for anyone who owns the property as their own, using it as their own home or having carried out work or services of a productive nature.
- After 15 years, in any case.
Requirements
The generic requirements of adverse possession, present in all types and taken into account in a procedural action, are:
- Uninterrupted and unopposed possession
- Intention to own
- Legal deadline
- Something that can be seized
But remember, there are more than 35 types of usucaption, each with its own specific requirements that differentiate one from the other. That's why it's important to hire a lawyer to understand your case and its particularities in order to file the most appropriate lawsuit.