Lack of commitment to purchase and sell property does not nu

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The lack of registration of the purchase and sale commitment is not enough to mischaracterize the fair title, a necessary requirement for the recognition of ordinary adverse possession. This understanding was reaffirmed by the 3rd Panel of the Superior Court of Justice when granting the appeal of the heirs of a man who in 1988 occupied a rural area based on a public deed of transfer of possession signed by the former owner.





reproduction

The 3rd Panel of the STJ recognized the

adverse possession of the rural area occupied in 1988

Reproduction

According to the court of origin, in 1990 a commitment to purchase and sell the area was agreed upon, which was not registered in the property registration. In 2009, however, a couple filed a claim in order to consolidate the supposed property right arising from the sale of the property to a bank.



The first degree court granted the request and established compensation for the improvements made. The heirs then appealed to the Court of Justice of Mato Grosso do Sul (TJ-MS), which understood that, despite the expiry of the legal period, the commitment to purchase and sell the property, as it was not registered, was not capable of to configure ordinary adverse possession.



Furthermore, the TJ-MS argued that the usucaption period was interrupted due to the drawing up of a police report and the filing of an action for the imposition of Portugal Mobile Number List possession, in 2004, by a third party. The action took place without summoning the occupants of the property and was terminated without a judgment on the merits.



Cure through time

The rapporteur of the heirs' appeal, minister Villas Bôas Cueva, explained that fair title, in ordinary adverse possession, presupposes the existence of a flaw — in this case, the absence of registration — that the passage of time tries to remedy, if the other requirements provided for in article 551 of the Civil Code of 1916 or 1,242 of the Civil Code of 2002 are present.



The minister cited Pontes de Miranda to say that, in adverse possession, it would be absurd to require a fair transcribed title and good faith, as the registered title already transfers the property, making it unnecessary to speak of any form of adverse possession. The doctrine, added the rapporteur, through Statement 86 approved at the 1st Civil Law Conference, consolidated this same understanding by providing that the expression "just title" of the Civil Code "covers any and all legal acts capable, in theory, of transferring ownership, regardless of registration".







Regarding the interruption of the deadline, the minister highlighted that the STJ has already expressed its understanding that not all resistance from the owner is valid to interrupt the acquisitive prescription. For him, the judgment of unfoundedness, or extinction without resolution of the merits, of a possessory or petitionary action, as occurred in the case, is one of the situations in which the period for acquiring the property through adverse possession is not interrupted.