Extraordinary adverse possession. Even in the case of a property that is the object of an inheritance, it is possible for one of the heirs to claim the declaration of acquisitive prescription of the asset (adverse possession). This, provided that the requirements for the extraordinary configuration set forth in article 1,238 of the Civil Code of 2002 are observed. The period of 15 years cumulated with exclusive, uninterrupted possession without opposition from the other owners or from third parties.
The understanding was reaffirmed by the Third Panel of the Superior Court of Justice (STJ) in reforming a ruling of the Court of Justice of São Paulo (TJSP) and ordering the return of the records to the court of origin for the continuation of the adverse possession action, previously judged extinct without resolution on the merits.
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Extraordinary adverse possession
The extraordinary adverse possession action, filed by one of the heirs, sought the recognition, in her favor, of ownership of the property that is the object of the inheritance.
In the first instance – the judgment was subsequently confirmed by the TJSP – the judge declared the proceeding extinct, without resolution on the merits, on the understanding that the fact that the heir claims to be the possessor of the asset exclusively does not allow her to acquire ownership individually, since the tolerance of the other heirs generates detention of the asset, but not its possession.
The reporting justice of the heir’s special appeal, Minister Nancy Andrighi, highlighted that, with death, the transfer of the property to its heirs occurs, in accordance with the rule of article 1,784 of the Civil Code of 2002.
“From this transfer, a pro indiviso co-ownership over the hereditary estate is created, the right of the co-heirs, as to the ownership and possession of the inheritance, being governed by the rules relating to co-ownership, as provided in article 1,791, sole paragraph, of the CC/02,” the minister pointed out.
However, the reporting justice highlighted that the STJ has case law to the effect that it is possible for the co-owner to acquire by adverse possession, in his own name, provided that the legal requirements of adverse possession are met and that exclusive possession has been exercised by the heir/co-owner as if he were the owner (animus domini).
“It is concluded, therefore, that the present adverse possession action filed by the appellant should not have been extinguished, without resolution on the merits, and the records should return to the court of origin so that the necessary evidentiary phase may be afforded to it for the proof of the exclusivity of her possession, as well as of the other requirements of extraordinary adverse possession,” the minister concluded in ordering the return of the records to the court of origin.
Source: STJ
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