Acordao do Tribunal de Justça do Estado do Espírito Santo - Terceira câmara cível (Processo 0000754-29.2013.8.08.0020), 03/03/2020
Data | 03 Março 2020 |
Data de publicação | 13 Março 2020 |
Número do processo | 0000754-29.2013.8.08.0020 |
Classe processual | Apelação cível |
Órgão | Terceira câmara cível |
Tribunal de Origem | Guaçui - 1ª vara |
DIREITO DE VIZINHANÇA. ABERTURA DE JANELA. AUSÊNCIA DE OPOSIÇÃO DO PROPRIETÁRIO VIZINHO. SERVIDÃO APARENTE. PRESCRIÇÃO AQUISITIVA DE LUZ E AR. DESFAZIMENTO DE CONTRAMURO.
1. À primeira vista, o proprietário de um imóvel é livre para realizar as construções que lhe aprouver (art. 1.299 do CC/2002), podendo edificar vãos e abertura de luz e ventilação (art. 1.302 do CC/2002).
2. A ideia dessas regras é preservar a privacidade dos imóveis, vedando a construção de janelas, varandas, eirado ou terraço em distância inferior a um metro e meio do muro divisório (art. 1.301 do CC/2002).
3. Entretanto, mesmo quando não observado o recuo determinado pela legislação, se o proprietário vizinho não se opuser àquela construção, ocorrerá a prescrição aquisitiva da servidão de luz e ar, nos termos do art. 1.379 do CC/2002.
4. Constatado o transcurso de mais de vinte anos entre a abertura das janelas e a construção do contramuro, sem qualquer oposição do proprietário vizinho, verifica-se a servidão aparente e o mencionado contramuro deverá ser desfeito (art. 1.379 do CC/2002). Precedentes TJES.
Vistos, relatados e discutidos estes autos em que são partes as acima indicadas, acordam os Desembargadores da TERCEIRA CÂMARA CÍVEL do Tribunal de Justiça do Espírito Santo, à unanimidade, conhecer e negar provimento ao recurso de apelação.
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