Real property. By virtue of the legal obligation to record the alterations made to properties, the judicial decision that conditions the continuation of the probate (inventory) action upon the regularization, before the competent registry, of the assets that make up the estate subject to partition is legitimate. The condition does not represent an obstacle to the right to exercise the action, but rather, above all, the fulfillment of conditions established by the legal system itself.
The understanding of the Third Panel of the Superior Court of Justice (STJ) was applied to uphold a judicial decision that concluded that the regularization of the real property that makes up the estate’s assets is indispensable.
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In the case analyzed, modifications were made to assets subject to partition, such as the construction of apartments on a plot of land, without there having been a recording before the real property registry.
“The judicial imposition that the real property belonging to the deceased be regularized, so that only from this act onward is the probate action given an adequate conclusion, is, as the legal doctrine says, a ‘reasonable condition,’ especially for reasons of a practical order — the partition of real property in an irregular situation, with unrecorded accessions, would greatly hinder, if not render unfeasible, the appraisal, the pricing, the division or even the eventual alienation of the said real property,” pointed out the reporting justice for the special appeal, Justice Nancy Andrighi.
The justice emphasized that the recording of alterations made to properties is an act of an obligatory nature, as stipulated by articles 167 and 169 of the Public Registries Law. According to these provisions, modifications such as buildings, reconstructions and demolitions, in addition to the subdivision and parceling of properties, must be recorded.
With regard to the conditions of access to justice, the reporting justice also stressed that the doctrine admits “with naturalness” that conditions be imposed on the adequate exercise of this fundamental right. For the doctrine, access to justice cannot suffer obstacles, but accepts “reasonable conditions.”
Regularization of the real property to be partitioned
“In summary, without prejudice to the consequences or penalties of a tax nature or those arising from the State’s police power (embargo of the work, interdiction or demolition of buildings constructed irregularly or imposition of pecuniary sanctions), nothing prevents that, as a condition of admissibility of the probate action, the regularization of the real property to be partitioned among the heirs be carried out, as a logical consequence of the obligation contained in articles 167, II, 4, and 169 of the Public Registries Law,” the justice concluded in upholding the first-instance decision.
The number of this proceeding is not disclosed by reason of judicial secrecy.
Source: STJ
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