The special urban individual and collective usucapion by interversio possessionis of precarious tença in possession ad usucapionem pro morada, pro labore e pro misero
| Autor | Gilberto Fachetti Silvestre |
| Cargo | Professor do Departamento de Direito e do Programa de Pós-Graduação em Direito (Mestrado em Direito Processual) da Universidade Federal do Espírito Santo (UFES) |
| Páginas | 2030-2073 |
Revista de Direito da Cidade vol. 13, nº 4. ISSN 2317-7721
DOI: 10.12957/rdc.2021.52571
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Revista de Direito da Cidade, vol. 13, nº 4. ISSN 2317-7721. pp.2030-2073 2030
THE SPECIAL URBAN INDIVIDUAL AND COLLECTIVE USUCAPION BY INTERVERSIO POSSESSIONIS OF
PRECARIOUS TENÇA IN POSSESSION AD USUCAPIONEM PRO MORADA, PRO LABORE E PRO MISERO
Gilberto Fachetti Silvestre1
ABSTRACT
It is a research that applies concepts of the civilistic and problematic of the possessory right to the special
urban usucapion (collective and individual). It aimed to investigate answers and understandings around the
questioning whether or not there is the intervention of possession of precarious tença, a matter that is still
a problem in the scope of Civil Law for configuring possession ad usucapionem. Subsequently, he applied
the conclusions obtained in that investigation to the usucapion institute, in its individual and collective
urban modalities, as well as applied, also, to the right of housing in the urban space. In addition to the
national and foreign bibliographic review, the research also had as a documentary sample judged by the
Superior Court of Justice that dealt with the subject. Following a qualitative and quantitative method, the
investigation proceeded with the statistics of the judges to verify whether there is jurisprudence around
the matter. After a historical analysis of the precarium and the precario of Roman Law, the research
concluded that the association of precarious possession with eternal detention does not find historical or
legal support, so that nothing justifies maintaining the idea that the conversion of illicit detention for
precariousness in possession generating special urban usucapion.
Keywords: Precarium. Precarious possession. Interversio possessionis. Special urban usucapion. Social
function of possession.
1. INTRODUCTION.
Despite an old and recurrent theme, the possibility or not of resolving the vice of
precariousness and its transformation from vicious detention into ad usucapionem possession has not
yet found a firm and unanimous answer.
The initial and main questioning of this research was precisely whether or not t here is interversio
possessionis of precarious tença2, having traced the following investigation path: first, to verify how the
matter was in Roman Law; second, to systematize the legal regime of the matter in Brazilian legislation and
legal literature; third, to apply the conclusions obtained from the bibliographical research to the special
1 Profess or do Departamento de Direito e do Programa de Pós-Graduação em Direito (Mestrado em Direito
Processual) da Universidade Federal do Espírito Santo (UFES); Doutor em Direito Civil pela Pontifícia Universidade
Católica de São Pa ulo (PUC/SP); Mestre em Direito Processual Civil pela Universidade Federal do Esp írito Santo
(UFES); Coordenador dos Grupos de Pesquisa “Desafios do Processo” e “Medicina Defensiva” (PPGDIR/UFES);
Advogado. Afiliação:Universidade Federal do Esp írito Santo (UFES) Lattes: http://lattes.cnpq.br/714833586534
8409. ORCID: https://orcid.org/0000-0003-3604-7348 E-mail:gilberto. silves tre@ufes.br.
2 Tença is a word in Portuguese related to possession.
Revista de Direito da Cidade vol. 13, nº 4. ISSN 2317-7721
DOI: 10.12957/rdc.2021.52571
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Revista de Direito da Cidade, vol. 13, nº 4. ISSN 2317-7721. pp.2030-2073 2031
urban usucapio in the individual and collective modalities, as a way of guaranteeing housing and work; and
fourth, to carry out a qualitative and quantitative analysis of the judgments of the Superior Court of Justice
(Superior Tribunal de Justiça - STJ) to verify if there is any jurisprudence on the matter.
As for urban usucapio, the research approached it as an institute of urban law and treated its
definitions and issues as presuppositions, as the objective was to bring conclusions and concepts of civil law
and possession rights to matters of urban aspects, demonstrating how it could be done.
It is interesting to anticipate that Brazilian Law gave very particular contours to “precariousness”,
substantially different from those found in Roman Law and some Civil Law countries in Europe and South
America that were analyzed in the research.
Therefore, this research proposed an investigation of how the interversio possessionis of precarious
tença is defined and how it can be applied, from a theoretical perspective, to special urban usucapio and
the right to housing and work. But, obviously and preliminary to everything, it was necessary to ask: does
this possibility exist in the Brazilian legal system?
The answers, based on the understanding of the Superior Court of Justice and the legal literature,
were not unanimous and were not always positive. Therefore, parallel to the qualitative and quantitative
investigation in the special instance, the research sought to systematize the opinions of Brazilian and foreign
authors regarding the possibility of usucapio based on an originating precarious tença.
The general objective of this research was to identify whether it is currently possible to recognize
the ad usucapionem inversion of precarious tença and its reason. In order to implement this objective,
statistics on the judgments of the Superior Court of Justice were carried out to verify whether there is
jurisprudence on the subject. As a premise, the research probed the notions of vices and interversio
possessionis identified in the legal literature.
For that, an object screening was necessary: of the documents of judicial nature, only those of the
Superior Court of Justice were used, due to its unifying role of the federal jurisprudence. Accordingly, the
research was developed with a qualitative and quantitative approach.
The research concludes that, in the case of someone or an urban nucleus precariously owning a
property, but using it for housing or work purposes for years, this situation cannot be a mere tença. There
is an interest in society to consider this situation relevant, especially if it concerns poor people. Therefore,
it makes perfect sense to speak of a right to ownership of those who continued to enjoy and give the
property a lawful purpose. In other words: these holders, under these conditions, have a right to interversio
possessionis of the precarious tença in ad usucapionem possession so that, in the urban space, they have
regularized their dominion situation.
The research, therefore, intends to offer Law operators the recent and current understanding of
the Superior Court of Justice and the Brazilian legal literature about the characterization of the interversio
possessionis of the so-called "precarious possession" (rectius: precarious tença) and, with that, practical
resources to the legal community for the operability of the matter in court.
Revista de Direito da Cidade vol. 13, nº 4. ISSN 2317-7721
DOI: 10.12957/rdc.2021.52571
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Revista de Direito da Cidade, vol. 13, nº 4. ISSN 2317-7721. pp.2030-2073 2032
2. "PRECARIO" AS VICE AND OTHER SENSES.
POSSESSION NEC VI, NEC CLAM, NEC PRECARIOUS.
All ad usucapionem possession - and, consequently, usucapio itself - has its origin in a dispossession,
that is, in the impossibility of free exercise of possession by the legitimate owner due to the seizure of the
thing by the squatter (whether in bad or good faith).
The dispossession, together with the disturbance and the threat or risk, constitute the
inconveniences of possession, which are situations that prevent the legitimate possessor or owner from
exercising the powers inherent to domain and possession (SILVESTRE, 2019).
Dispossession and disturbance can — and often — have their origins in the so-called vices of
possession, which concern the way in which it was acquired. In the Brazilian legal system, the existence of
three vices — or defects — of possession are recognized: vi (violence), clam (clandestine) and precario
(precariousness) (BEVILÁQUA, 2003) (GONÇALVES, 2008).
Violence (vi) - from which "violent possession" will result - occurs when someone takes possession
of someone else's property through irresistible acts of aggression or physical or moral coercion against the
legitimate owner or someone in their family or their workers, or even against the thing itself. It is an act
against which it is not possible to resist (SILVESTR, 2019).
Clandestineness (clam) — which gives rise to “clandestine possession” — is surreptitiously acquired
by imperceptible and hidden acts until the actual occurrence of the dispossession or disturbance. One might
say of possession obtained silently, without violence or destruction of things and protections. In practical
terms, the distinction between violent and clandestine possession is not as relevant for purposes of
interdict or ‘publician’ (usucapio) protection, as the consequences are the same. This distinction makes
sense, perhaps, for the purpose of characterizing the extent of the damage in possible indemnity for losses
and damages and moral damages, which tends to be greater in the case of violence (SILVESTRE, 2019).
Precariousness (precario) — which will constitute “precarious possession” — is a circumstance in
which possession loses its authorized aspect and becomes an unauthorized detention. The possessor or
mere holder has the authorization of the legitimate holder of the thing to exercise its use and usufruct up
to a term ad quem or sine die, fixed in advance by agreement or notification. However, the person who has
the thing does not fulfill the provision of returning i t to the rightful owner, keeping in possession of the
thing improperly and without authorization (MOREIRA ALVES, 1997). Therefore, this precarious possession
originates in a business default (MOREIRA ALVES, 1987). This is the case, for example, of the lessee who
does not return the property at the end of the contract, as long as there is no legal hypothesis of extension
of the contract for an indefinite period provided for in Law 8.245/1991, § 1 of article 46:
Art. 46. In leases agreed in writing and for a period equal to or greater than thirty
months, the contract will be terminated after the stipulated period, regardless
of notification or notice.
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