ORIGINAL ARTICLE
SILVA, Elaine Apolinário De Amorim [1]
SILVA, Elaine Apolinario De Amorim. The institute of Extrajudicial Usucapion as a form of dejudicialization of demands. Revista Científica Multidisciplinar Núcleo do Conhecimento. Year 05, Ed. 10, Vol. 09, pp. 56-90. October 2020. ISSN: 2448-0959, Access link: https://www.nucleodoconhecimento.com.br/law/extrajudicial-usucapion
ABSTRACT
The work aims to address the institute of extrajudicial usucapion, which was brought to the legal system through the New Code of Civil Procedure of 2015, from the perspective of dejudicialization of demands. The scientific method to be applied is the deductive, analyzing in general the right to property and the institute of usucapion in Brazil, the process of dejudicialization in Brazil, and even the processing of extrajudicial usucapion in extrajudicial services. The theoretical framework of the work will be developed through bibliographic research, researching the doctrine and legislation on the subject. The work was divided into three chapters. In the first, we sought to address the general aspects of the institute of usucapion in the legal system, addressing about its species, and the legal requirements of each one. In the second chapter he took an approach to dejudicialization as an alternative way of resolving conflicts. In the third chapter he made an approach on the institute of Extrajudicial usucapion in the new Code of Civil Procedure, as well as the processing before the real estate registrar.
Keywords: Dejudicialization, usucapion Extrajudicial, new code of civil procedure.
INTRODUCTION
Given the slowness of judicial protection for citizens, dejudicialization emerges as an instrument for reducing the number of cases in justice, and as an alternative means of achieving the effectiveness of rights.
The code of civil procedure (Law No. 13,105 of March 16, 2015) contributed significantly to the alternative solution of demands. The provision in the legal system of the processing of the institute of extrajudicial usucapion by extrajudicial means, positively impacted the Brazilian legal scenario.
It is notorious that Brazil is experiencing a time when the process of dejudicialization of demands is fostered, growing in recent years. It began with Law No. 9,514/97, which instituted the fiduciary disposal of immovable property.Then it was advanced with Law No. 10,931/2004, which deals with Extrajudicial Rectification, which aims at greater speed in real estate registration rectification procedures, transferring this attribution, from the judiciary to the extrajudicial sphere, that is, to the real estate registrar, then solidifying its functional autonomy.
Then, with the advent of Law 11.441/07, other important changes contributed greatly to this process of dejudicialization, because it allowed divorces, separations and inventories to be carried out in out-of-court notatives, contributing to the undrowning of the judicial sphere.
The code of civil procedure through article no. 1,071, which inserted in Law No. 6,015/197 (Law of registrars), Article 216-A, bringing to the legal system the provision of extrajudicial usucapion. This regulation is another advance of the process of dejudicialization of demands, being relevant in this process.
At the first moment, in Chapter 1 will be analyzed in general, the aspects of the Institute of usucapion in the legal system, defining concepts, in chapter 2 will be carried out an investigation on dejudicialization in Brazil, of cases in which there are no disputes and that the resolution is provided by extrajudicial means. Finally, in chapter 3, the Institute of the Extrajudicial usucapion of Real Estate Property will be addressed, the requirements and procedures and how the Institute contributes to the dejudicialization of claims, as well as the relevant legislation.
This bibliographical research aims to present what the Brazilian legal system says on the subject, and intends to demonstrate that in Brazil the Notary and Records Services contribute directly to the dejudicialization of demands.
Law evolves according to the demands required by society. Thus it is perceived, that with the new changes brought Code of Civil Procedure, it became possible a greater participation in this process of dejudicialization, because with a notarial ata drawn up by notary attesting the time of possession in the property usucapiendo, it is possible the processing of the Institute of Real Estate Property directly before the Property Registry of the locality of the property usucapiendo.
With the judicial system crammed with increasing demand every day, it is necessary to find alternative solutions. With the processing of usucapion before and Real Estate Registrar, the company has a more efficient service provision, and shorter time, to the detriment of the Judiciary, obtaining speed with the same legal certainty.
The problem of the present work is to present how the Extrajudicial Institute of Real Estate Usucapion can contribute to the dejudicialization of demands, and to identify the most frequent problems for the processing of the institute through the extrajudicial way. The hypothesis raised for the solution of the problem may be a standardization of procedures by the State Justice, publishing provisions that detail the procedures as much as possible.
To achieve the overall goal, some specific objectives will be pursued. Present the theme under the focus of the Brazilian legal system; Present extrajudicial services as alternatives for problem solving, aiming at the effectiveness of real rights and efficiency;
The scientific method to be applied is the deductive, which is part of general arguments for particular arguments, having as a fundamental question the logical relationship that must be established between the propositions and the conclusions. The theoretical framework of the work will be developed through bibliographic research, researching the doctrine and legislation on the subject.
The legal methodology adopted is critical historicism, having as its main source of interpretation positive law, recognizing that there is cultural influence on knowledge, valuing teleological interpretation, that is, the intention of the law. The legal dogmatics will be the transmission of the meme on the technical aspects to the practical aspects of law.
1. GENERAL ASPECTS OF USUCAPION
For a better understanding of the proposed theme, it is necessary a brief report about the institute of usucapion in our legal system, in general, as well as on some aspects the real property right, which is related to the institute, and which is inherent to the system of registration of real estate in Brazil.
1.1 REAL PROPERTY RIGHT
The civil code of 1916 brought to the right of property an absolute character, where the owner could do whatever he wanted with the property, without any limitation, and without the state making any intervention. Over the years, through the evolution of society, more precisely with the civil code of 2002, the right to property began to suffer certain limitations, being a relationship of rights and duties.
The Federal Constitution of 1988 in Art. 5, XXII and XXIII, consecrated the right to property as a fundamental right of the human person, and brought the prediction of the principle of the social function of property.
Art. 5º All are equal before the law, without distinction of any nature, guaranteeing brazilians and foreigners residing in the country the inviolability of the right to life, liberty, equality, security and property, in the following terms:
XXII – the right to property is guaranteed;
XXIII – the property will meet its social function; (BRASIL, 2020)
Property is an inviolable guarantee of the human person, but must be exercised according to social and economic purposes, being aimed at meeting the social interest, the common good, which is its main function.
The 2002 civil code brought a list of royal rights. In article 1,125, the real right to property is included among the real rights.It also brings the Civil Code of 2002, in article 1.228, important considerations about property, (BRASIL, 2020):
Art. 1.228. The owner has the right to use, enjoy and dispose of the thing, and the right to return it from the power of whoever unjustly possesses it or holds it.
§ 1. The right to property must be exercised in accordance with its economic and social purposes and in such a way that they are preserved, in accordance with the provisions of special law, the flora, fauna, natural beauties, ecological balance and historical and artistic heritage, as well as avoided air and water pollution.
§ 2 – Acts that do not bring to the owner any convenience, or utility, and are animated by the intention to harm others are closed.
§ 3 – The owner may be deprived of the thing, in cases of expropriation, by necessity or public utility or social interest, as well as in the request, in case of imminent public danger.
§ 4 – The owner may also be deprived of the thing if the property claimed consists of an extensive area, in uninterrupted possession and good faith, for more than five years, of a considerable number of people, and these have carried out, jointly or separately, works and services considered by the judge of relevant social and economic interest.
§ 5 – In the case of the preceding paragraph, the judge shall fix the fair indemnity due to the owner; paid the price, will be worth the award as a title for the registration of the property on behalf of the owners.
According to art. 1128 caput, we can define the property, as a real right, which gives the owner the faculties to use the thing, exploit economically, being able to choose the destination to be given to the good, and claim the thing.
The real right of property has erga omnes character, as it is oposome to all. It is a subjective right, and it has in the structure the elements: active subject, taxable subject, object, and legal relationship.
1.1.2 THE ACQUISITION OF REAL ESTATE
In the Brazilian legal system, the acquisition of real estate can happen in an original or derivative way.
It happens in an original way when there is no link of transfer of the thing from one person to another, so there is no transmission. The usucapion, is an original form of acquisition, since the possessor does not acquire the property of another, but acquires on the grounds of possession.
Another case of original acquisition is expropriation, because the state does not acquire the property because of the will of the owner, but rather because it is a mandatory, it does not buy, but incorporates into its assets, paying only an indemnity, and not the price that the owner stipulates. Accession is also an original form of acquisition.
The acquisition of derivative form, occurs when there is a transmission of the thing, by inter vivos act or causa mortis, there is a manifestation of will, the owner transfers to others, so there is a legal relationship between people, and can be free or costly.
1.1.3 MODES OF ACQUISITION OF REAL ESTATE
There are several ways to acquire real estate. According to the civil code of 1916 these forms are succession, usucapion, accession and transcription.
The Civil Code of 2002 did not bring in a very organized way the forms of acquisition of real estate property. But it provides that expropriation, compulsory award and marriage by universal communion are ways of acquiring property.
According to the doctrine the modes of acquisition are: the usucapion, registration of purchase title, acsessions. Some argue that successions, expropriations, compulsory awards, and marriage by universal communion of goods are also modes of acquisition.
The usucapion is an originating mode of acquisition, and the occupant acquires the property through the prolonged time of the exercise of possession in a meek and peaceful manner. There are several species of usucapion in the legal system.
The purchase title record is a form derived from acquisition. Examples of purchasing title, purchase and sale, donation, exchange, payment, etc.
The accession, is when a net worth has gained, increasing its size. It is provided for in Art. 1,248 of the Civil Code. They can be by island formation; by alluvial; by avulsion; by abandonment of alveo; by plantations or buildings.
Succession is when there is acquisition through legitimate succession, by will, by legacy.
1.2 BRIEF HISTORICAL REPORT OF USUCAPION IN BRAZIL
The usucapion is a very old institute, which has the right to grant the right of property to the owner of the thing, through the exercise of possession. The date of the emergence of this institute is unclear. Some authors claim that it arose in Greece, others claim that it was through Roman law, in particular the Laws of the XII tablets. On the emergence of this institute, Barrufini (BARRUFINI, 1998, p.21) has:
Although most indoctrinators understand that the usucapion originated in Rome, going back to the Laws of the XII Tablets, others also understand that the usucapion was generated by Greek intelligence […]. Luiz da Cunha Gonçalves, if in the same tuning, leaving implicit, when discussing the usucapion of the Romans, that the true formulation occurred in Hellenic lands.
The usucapion is an original way of acquiring the property through the exercise of possession in a prolonged, public and peaceful manner, so it is an appropriation of possession for a certain time. Over time, with civilization, this ultra-millennial institute has been improving, and suiting the needs of society.
The law of the XII boards, provided that the owner lost the property through the prescription of the right of property, that is, by its inertia in the property. The term was two years for real estate, and one year for mobile properties.
The usucapion is an original form of acquisition, so for the law there is no need to know who is the owner, the owner most of the time does not acquire the thing of the owner. The usucapion guarantees the property through continued ownership.
This institute in the Brazilian legal system had lusitanian influence, and of Roman law. This influence is due to the Portuguese colonization that upon discovering the territory of Brazil, acquired the title of possession. From this discovery, in order to populate the territory, they made land donations through the letters of sesmarias, in order to encourage the cultivation of these lands. This system of occupation of the territory through the exercise of ownership, without any land registration occurred until the independence of Brazil in the year 1,822, when land records began to emerge in a still very precarious manner.
Law No. 601 of 1850, known as the vicar’s law or land law, was an important milestone for the institute, which provided for a legitimation of land ownership by the vicar of the Catholic Church, in order to facilitate the exploitation of these lands. However, it was still a very timid legitimation, because it lacked resources for the measurement of land.
Then, with budget law no. 317/1,843, a credit control was created, with the registration of mortgages, establishing standards for guarantees for financing to cultivate the land.
Later, law no. 1,237/1864 was enacted, called the General Real Estate Registry Law, which sought the formality of the transcript, so that creditors would be aware of the situation of the land offered in collateral. The law provided that the transcript did not induce proof of mastery, that whoever it is, that is, with prolonged possession, the usucapion.
The civil code of 1,916 advanced in many respects, addressed some issues, and brought the principle that the property is acquired only with the registration, also consolidated the system of real estate registration in force in Brazil, which is a system of relative presumption.
Regarding the usucapion predicted the requirements of quality of ownership, time, owner’s spirit, pacificity, continuity, interruption and advertising. It instituted two modalities of usucapion, the extraordinary and the ordinary. From the civil code of 1916, this institute evolved as the legislation progressed, let’s see the words of Hélio Vianna (VIANNA, 1972, p.34):
In the Civil Code, which entered into force from 1916, the rules for the acquisition and transmission of immovable property were regulated, including the acquisition of the domain by usucapion (sic).In 1938, the Land and Colonization Division was created in the Ministry of Agriculture.In 1954, the National Institute of Immigration and Colonization.New aspects assumed the problem of the lands to be used in Brazil after the Revolution of 1964: the Institutes, National for Agrarian Development (INDA) and the Brazilian agrarian reform (IBRA) were created. Unified, in 1970, at the National Institute of Colonization and Agrarian Reform (INCRA), to which land use issues are affected in Brazil […]
In Article 550, the civil code of 1916, brought the extraordinary usucapion that provided for a time of thirty years of possession in the property by the occupant, to have the recognition of the usucapion through justice, which later passed to twenty years, and currently provides a period of fifteen years, and can in some cases be reduced to ten years.
The civil code of 1916, in Article 551, brought the provision of the ordinary usucapion, which contained a time of exercise of possession of fifteen years between absentees, and ten years between present, proving the meek and peaceful possession, and also good faith and fair title.
Over time, this institute has been shaping society and evolving, reducing deadlines, and with the promulgation of the federal constitution of 1988, several modalities of usucapion were created, which we will address later.
1.3 USUCAPION CONCEPT
Usucapion is a way of guaranteeing the right to property of a particular property through possession – qualified possession – for a period.
The Brazilian legal system allows usucapion of movable and immovable property. The most common is real estate, although legally it is possible to usucapir a movable property, in Brazil it does not have much applicability to usucapion of movable property.
We can extract from article 1.238 caput of the Civil Code/2002 (BRASIL, 2020), a general definition of usucapion, “Art. 1.238. He who, for fifteen years, without interruption, nor opposition, possesses as his own property, acquires property for him, regardless of title and good faith.” In line with the device, possession needs to be meek and peaceful, meaning it cannot be a violent possession. Possession has to be public, recognized by neighbors and others, as if it were the owner of the property.
The author Arnaldo Rizzardo (RIZZARDO, 2013, p. 264), conceptualizes the institute of usucapion as follows:
[…] an original mode of acquisition, by which the person holding possession in a property, by a certain period provided by law, acquires the domain of him, provided that his possession has met certain requirements, that is, reveals that he has always been peaceful, meek and uninterrupted, without any opposition of the holder of the domain and with the animus domini.
The exercise of possession by a time lapse is an elementary requirement of the usucapião. Still conceptualizing the institute of usucapião, the author Orlando Gomes (GOMES, 2012, p. 180) writes:
Usucapion is, in the classic concept of Modestino, the way to acquire the property for continued possession for a certain period of time, with the requirements established in law: usucapio est adjectio domini per continuationem possessionis temporis lege definit.
According to the concepts presented by the authors, let us see that in order for the possessor to acquire the property it is necessary that there is a prolonged possession, and meets the requirements established for each species. Orlando Gomes, understands that these legal requirements can be characterized as personal, real and formal.
Personal requirements, we can understand that it is the civil capacity and legitimacy of the user. The actual requirements are related to the assets that can be obtained from the institute of usucapion, because there are in the legal order provision of goods that can not be objects of usucapion, one can cite as an example the public goods. The formal requirements are those elements of the institute, therefore, are the possession, the lapse of time and the spirit of owner, and depending on the species adds the fair title and good faith.
According to part of the doctrine, the usucapion dispenses with some assumptions: a) res habilis; b) possession; c) fides; d) tempus. The assumption of res habilis is that the thing to be used should be a good that can be used, that there is no impediment. The assumption of possession is the relationship of possession in good, and that it be with animus domini. The assumption fides is provided for in Article 1.201, the sole paragraph of the civil code of 2002, is summarized in good faith. The tempus assumption is the time lapse, which varies according to the type of usucapião.
Usucapion is an originating mode of acquisition of the property by the owner in view of the general passivity of the owner or third parties. It is a solution for those who have dominion over a property through ownership, but who do not have the title of the property.
The time lapse foreseen for the recognition of usucapion has the power to offer greater legal certainty to the institute. With the constitution of 1,988, this institute became an effective instrument to effect the right to property, which is a fundamental right of the human person.
The usucapion for constituting an original form of acquisition, where the occupant will acquire the right of property for exercising a prolonged possession, in the property, there is no legal relationship with the former owner, because it does not acquire it. This institute has a purchasing, and extinguishing character. The purchasing prescription occurs in the face of prolonged inertia of the owner. The purchaser, by the fact that the occupant acquires the property through qualified ownership. In this sense Farias Rosenvald (FARIAS; ROSENVALD , 2012, p. 398-399), provides on the effects of usucapion:
as in the usucapion, the owner acquires the property for his prolonged possession, despite any legal relationship with the previous owner, will not focus on the generating fact of the ITBI (the transmission of the property, the content of art. 35 of the CTN), since the usucapiente does not acquire the thing of the former owner, but against the former owner. Moreover, if there is any real burden on the property, due to a legal business practiced by the former owner (e.g., mortgage, servitude), the record before the user, who will receive the clear property, free of macules, will not remain.
Thus, in the acquisitions founded in the institute of the usucapion, do not affect the Transfer Tax on immovable property – ITBI – because it is not an acquisition where there was transmission, but rather an original acquisition, the occupant does not acquire from the owner, but acquires due to the exercise of qualified ownership.
2. THE EXTRAJUDICIAL SPHERE AS A CONFLICT RESOLUTION ALTERNATIVE
Over the years, the state has faced many challenges to offer an efficient judicial provision to society. The increasing judicialization of rights triggered by the promulgation of the Federal Constitution of 1988, caused an increase in procedural demands, in the appeals to be judged, also increasing the cost of proceedings to the parties.
The crisis in which the judiciary is submerged is notorious, with the demands of lawsuits growing day after day, overdemanded and, therefore, time-consuming, sometimes inefficient. The provision of ineffective judicial protection sometimes contributes to generating insecurity for society, which is dissatisfied when they depend on the State to resolve conflicts. In this context, dejudicialization emerges as an alternative form of conflict resolution. This chapter will address the extrajudicial sphere as a dispute resolution.
2.1 CONTEXTUALIZATION OF DEJUDICIALIZATION
For a long time the state was involved to offer a resolution of people’s conflicts. The power to say the right was exercised by the conflicting parties through self-guardianship. In the 17th century, after the theory of the division of powers, the State invoked this power to itself, and became exclusively the holder of the power to apply and say the law.
With the promulgation of the Federal Constitution of 1988, and with the changes brought to the legal system, especially the fundamental constitutional principles inserted in Article 5 of the Magma charter, the guarantee of access to justice gained strength, as it was enshrined in Article 5, item XXXV of the Federal Constitution, (BRASIL, 2020) let’s see:
Art. 5º All are equal before the law, without distinction of any nature, guaranteeing brazilians and foreigners residing in the country the inviolability of the right to life, liberty, equality, security and property, in the following terms:
XXXV – the law will not exclude from the assessment of the Judiciary injury or threat to law;
That provision enshrined in the legal system the principle of unexception of jurisdiction. On this important principle, Alexandre de Moraes (MORAES, 1998, p. 197) explains:
The Judiciary, provided there is plausibility of threat to the right, is obliged to effect the request for judicial benefit requested by the party on a regular basis, because the indeclinability of the judicial provision is a basic principle governing the jurisdiction, since the entire violation of a right responds to a correlative action, regardless of special law that provides it.
This principle provides for the right to legal protection through the courts in a broad manner. Canotilho argues that ensuring access to justice represents a fundamental principle of the rule of law (CANOTILHO, 2003).
With this exclusive call for the state of judicial protection, everyone who feels harmed has the right to obtain the right of action from the judiciary appropriately. With this guarantee of the right to action, there was an incentive to judicialize demands. Those who were previously afraid to litigate, now with the guarantee of the state, seek to have their rights retaken.
With this conquest of the democratic rule of law in 1988, it is perceived that there was an increase in judicial demands. Now the state faces challenges in how to manage these growing demands so that the judiciary has speed and effectiveness.
Constitutional Amendment No. 45/2004, added to Article 5 of the CF/88 the item LXXVIII, consecrating in our legal system the principle of procedural speed, let us all see, in the judicial and administrative sphere, are assured the reasonable duration of the process and the means that ensure the speed of its processing”, this principle refers us to the idea of economicity.
This principle relates to the principle of unmoving jurisdiction. If on the one hand the state has invoked for itself the exclusivity of saying the right, now it is not enough to offer society only access to justice, but it is necessary to offer justice quickly and in a timely manner. In this sense, the author Luiz Guilherme Marinoni (MARINONI, 1999, p. 218), writes:
A more modern reading, however, gives rise to the idea that this constitutional rule guarantees not only the right of action, but the possibility of effective access to justice and, thus, a right to adequate, effective and timely judicial protection. It would not be appropriate to understand, in fact, that the constitution of the Republic guarantees the citizen, who can affirm an injury or threat to the right, only and only one response, regardless of whether it is effective and timely.
In view of the principles of the inexception of jurisdiction and procedural speed, we see a need to think about new paradigms for the judiciary. Thus, we understand that the obligation to offer an efficient judicial protection to society is over the state, and that it must create mechanisms to guarantee that fundamental right to the jurisdictions.
For a better understanding of the situation of the judiciary, let’s look at an excerpt from the report released by the National Council of Justice (CNJ, 2016):
These factors help to understand why, although there is a number of cases downloaded almost always equivalent to the number of new cases, the stock of lawsuits in the Judiciary (74 million) continues to increase since 2009, as shown in Graph 3.24. The accumulated growth of this period was 19.4%, that is, 9.6 million more processes compared to that year. Thus, even if the Judiciary were paralyzed without new demands, with the current productivity of magistrates and servants, it would take approximately 3 years of work to zero the stock.
This is the situation in which the judiciary is. The report states that even if the justice sits without new demands, it would take approximately three years to resolve the processes that the judiciary is in.
Given this scenario of such slowness in judicial protection, we will explore, an alternative way to solve this problem, aiming at a guardianship that can effect the rights.
2.2 ALTERNATIVE MEANS OF CONFLICT RESOLUTION
In recent years, Brazil has been adopting mechanisms that help reduce the problem of the slowness installed in justice. In this topic, an approach to the notarial and registral function will be made as an alternative in solving this problem, especially by presenting the acts drawn up in the Notes Tabelionates and in the Real Estate Records. In this respect Daniela Olímpio de Oliveira (OLIVEIRA, 2014, p.163), discusses the dejudicialization:
Dejudicialization is more in the process – the movement to withdraw procedures that were once typical of the judicial function, and are now absorbed by other non-judicial bodies. In fact, one can maintain the coexistence of the means, or not.Thus, procedures are excluded from the judicial assessment, and others which are also assumed by administrative or carorary procedure.
The notarial function according to Leonardo Brandelli (BRANDELLI, 2007, p. 04), “is a social creation, which came up with the function of assisting in their needs, according to the development of the legal world”. Thus, it carries out a procedural collaboration through the public form of notaries, which have presumption juris tantu.
The Notary is the one who formalizes the will of the parties, acting impartially, enforce the law, ensuring the application of the principles that govern out-of-court activity, and the prevention of disputes. On the other hand, the Registrar examines the title to be registered, performing the qualification of the title in accordance with the Law, and with the principles governing the registration activity, verifying whether the title is in conformity, whether or not the registration is admitted.
By extrajudicial means, society has at its disposal a variety of acts essential to modern life. Such acts are provided with speed and legal certainty, trust and public faith. Notarial and registral activities are present practically in all Brazilian cities. Thus, taking advantage of this structure to accelerate the process of dejudicialization of demands is very important.
This process of dejudicialization, which shares with notaries and registrars the competence to solve claims was boosted by Law 9.514/97, which instituted the fiduciary disposal of immovable property.Then it was advanced with Law No. 10,931/2004, which deals with Extrajudicial Rectification, which aims at greater speed in real estate registration rectification procedures, transferring this attribution, from the judiciary to the extrajudicial sphere, that is, to the real estate registrar, then solidifying its functional autonomy.
The advent of Law 11.441/07, brought important changes that contributed to the dejudicialization of demands, because it allowed divorces, separations and inventories to be carried out in out-of-court notatives, which contributed to the undrowning of the judicial sphere.
The new Civil Procedure Code brought important changes that emphasize procedural speed. In article 1071, which inserted article 216-A into Law No. 6,015 / 1973), which provides for extrajudicial usucapion, it is another advance in the process of de-judicializing claims, and which has been contributing in a very positive way to this process.
The Institute of usucapion is a form of acquisition of the property through possession over time, together with the fulfillment of other requirements defined in the legislation.
The main acts drawn up by notaries of notes that contribute to the process of dejudicialization of claims are: Deed of Inventory and Sharing, Separation and Divorce, Ata Notarial. The main acts practiced by the Real Estate Registrar are: Fiduciary Disposal of Immovable Property, Administrative Rectification, and Extrajudicial usucapion of Real Estate.
The most recent example of legalization is extrajudicial usucapion, provided for in the new code of civil procedure, which expanded the principle of access to justice by introducing extrajudicial usucapion into the legal system. Introduced art. 216-A to Law 6.015 / 73.
Through this institute many cases of properties that are irregular can be solved before the real estate registrar, without the need to take action, contributing to speed and legal certainty, facilitating the owner the acquisition of the property through the exercise of prolonged, peaceful possession, and without interruption.
The interested party may require the registrar to process the usucapion, provided that it complies with some requirements provided by law. It is possible to process by extrajudicial means of all species existing in the legal system.
It is necessary to represent by lawyer, ata notarial attesting the time of possession, plant and descriptive memorial of the property along with the note of technical responsibility (ART) of the engineer, negative certificates and other documents.
Equipped with these documents requires the registration of real estate of the locality of the property. The registrar upon receiving the order, files, and starts processing. If the file complies with the legislation, and there are no disputes, no challenge by the interested parties, the property will be registered on behalf of the owner.
Due to the relevance of this institute, we will approach with greater emphasis on its own chapter, because it is the object of this work.
3. EXTRAJUDICIAL PROCEDURE OF USUCAPION OF REAL ESTATE
In this chapter, a legal and doctrinal research will be carried out on the institute of extrajudicial usucapion, addressing the advances brought by him to the legal system. This important institute allows real estate property to be acquired in an original manner by the possessor, through continuous, meek and peaceful public ownership for a certain period of time.
3.1 GENERAL EXPLANATIONS ABOUT THE USUCAPION EXTRAJUDICIAL INSTITUTE
Before the validity of Law No. 13,105, 2015, the new code of civil procedure, the possessor who had an interest in acquiring the property through this institute, should enter the court with his own action of usucapion, following all the rules and phases of the process. This procedure as a rule became very time consuming and exhausting, demanding a lot of time and cost to those interested.
The code of civil procedure brought the provision of extrajudicial usucapion in art. 1.071 that added art. 216-A to law 6.015/73, entitled law of public records, where the instrument of the usucapion has been optional to interested parties, because it can be prosecuted beyond the judicial sphere, by extrajudicial means.
This forecast aims to contribute to the simplified procedure, encouraging the regularization of many properties, removing them from informality and bringing to the real estate market, thus contributing to the dejudicialization of demands, reducing the burden of judicial processes. In this sense João Pedro Lamana Paiva (PAIVA, 2015), emphasizes the simplicity in the processing of this institute:
[…] will facilitate the owner the acquisition of real estate property based on prolonged possession because, represented by lawyer and upon request instructed with a notarial ata, plan and descriptive memorial of the property, negative certificates and other documents, will submit the application to the registration of real estate in whose circumscription is located the property usucapindo, where it will be’ filed, autuado and taken all the necessary measures to the recognition of the purchasing possession of the real estate property and its registration on behalf of the owner.
There was already the provision in the legal system of usucapion by extrajudicial means, in cases of urban land regularization. This prediction came with the advent of Law No. 11,977, of 2009, the law that of the My House, My Life Program, which aims at the land regularization of urban seats in areas irregularly occupied by low-income population. However, its implementation was very restricted, because it aims only at collective urban land regularization, and the administrative procedure has a certain complexity, which has not shown much success in practice.
The provision of extrajudicial usucapion brought by the new code of civil procedure removes from justice the exclusivity of the regularization of possession and the issue of usucapion, expanding the procedure in the extrajudicial sphere, being possible for any consensual situation, and simplifies the procedure to the interested parties, making it more economical and expeditious, since extrajudicial activity guarantees the publicity, authenticity, effectiveness and legal certainty to acts practiced in this sphere.
The provision of the usucapion by extrajudicial means, it is up to any immovable property that is susceptible to usucapion, except to the contrary. Properties that have the burden of inalienability, as well as public property, may not be subject to extrajudicial usucapion. Another relevant point is that it exempts the judicial intervention of the Public Prosecutor’s Office.
Although the new code of civil procedure has advanced, bringing the prediction of the usucapion through the extrajudicial route, there were still problems for the applicability of this institute. The biggest garter, was in the express consent of the tabular owner and the holders of rights registered or registered on the registration.
Paragraph 2 of Article 216-A of Law 6.015/73 provided that in case there was no signature of the tabular owner and the rightholders in the plant and descriptive memorial, the registrar should notify them for demonstration to give an agreement, and the non-manifestation was considered as disagreement. This prediction has become a barrier to the effectiveness of the institute.
However, if the owner tabular and the rightholders, can sign the plan and descriptive memorial, or the notification, giving agreement, they could sign a public deed of purchase and sale of the property, resolving all irregularity. What leads to understand is that the institute would be valid and effective for those, who for any reason, want to exempt themselves from some obligation for the drafting of the deed of purchase and sale, as well as the collection of the ITBI, and not those who have long been trying the right to own their property, but have not yet acquired because it is not possible to meet the requirements required by law.
Most of the properties that are in informality, which could be regularized through extrajudicial usucapion, have the owner tabular disappeared, being in uncertain place and not known, sometimes, the possessor neither knew him, or is already deceased. Thus, it would be impossible to obtain an agreement, compromising the applicability of the institute.
Through this question, provisional measure No. 759 of 2016, which was converted into Law No. 13,465 of July 11, 2017, brought the solution to the problem presented. It amended Article 216-A, § 2, of Law 6.015/73, where it now provides that silence be interpreted as agreement. This change positively impacted the applicability of extrajudicial usucapion. Let’s look at the provisions of 216-A, § 2 (BRASIL, 2015):
If the plant does not contain the signature of any of the rights holders registered or registered on the registration of the property using or on the registration of the condoning properties, the holder will be notified by the competent registrar, personally or by mail with acknowledgement of receipt, to express express consent in fifteen days, interpreted the silence as agreement.
Thus, he began to admit tacit consent, in case there was no express manifestation.
Aiming at standardization, and clarification of doubts, the National Council of Justice (CNJ), published provision no. 65 of 14/12/2017, where it establishes guidelines to be followed in the procedure of extrajudicial usucapion that will be addressed in this chapter.
3.2 REQUIREMENTS
The usucapion is admitted by extrajudicial means in all the modalities provided for in the legal system, unless otherwise provided by law. There are requirements that are common to all species, permitted by the legal system, however the particularities of each one must be observed, which may require other requirements.
Article 216-A of law 6.015/1973 (BRASIL, 2015), the public records law, which was inserted through Article 1,071 of the new code of civil procedure, provides for the requirements necessary for the procedure to be usucapion by extrajudicial means:
Art. 216-A.Without prejudice to the judicial means, the application for extrajudicial recognition of usucapion is admitted, which will be processed directly before the registry of properties of the district in which the property is located usucapiendo, at the request of the interested party, represented by lawyer, instructed with: (Included by Law No. 13.105, 2015) (Term)
I – notarial ata drawn up by the notary, attesting the time of possession of the applicant and its predecessors, as the case and its circumstances, applying the provisions of Art. 384 of Law No. 13,105 of March 16, 2015 (Code of Civil Procedure); (Wording given by Law No. 13,465, 2017)
II – plant and descriptive memorial signed by legally qualified professional, with proof of annotation of technical responsibility in the respective professional supervisory board, and by the holders of rights registered or registered in the registration of the property usucapiendo or in the registration of the confining properties; (Wording given by Law No. 13,465, 2017)
III – negative certificates of the distributors of the district of the situation of the property and the domicile of the applicant; (Included in Law No. 13,105, 2015)
(Term)
IV – fair title or any other documents demonstrating the origin, continuity, nature and time of possession, such as the payment of taxes and fees on the property.(Included in Law No. 13,105, 2015) (Term)
The article begins by bringing the optional character to the interested parties. There is no need to exhaust one way, to enter the other, that is, you can enter either the judicial route, or by extrajudicial means, without having to obey the order, as long as they are not concomitantly.
The request must be made through an application signed by a lawyer, accompanied by a notary minutes drawn up by notary attesting to the time of possession by the owner in the property usucapiendo, as well as the circumstances of this possession, which shall be peaceful, lasting, uninterrupted, and public and should have an owner’s spirit.
In obedience to the principle of territoriality, the competent office for the procedure is the registration of real estate of the real estate constituency where the property usucapiendo is located.
It is also necessary that the application be accompanied by a plan and descriptive memorial of the property with the due note of technical responsibility of the responsible engineer, which must contain the signature of the engineer, if possible the tabular owner, and the neighboring continators, and other rights holders registered or registered on the registration.
The provision also carries the requirement of the presentation of negative certificates of the district of the situation of the property and the domicile of the applicant. The presentation of certificates, aims to prevent, if the property is the subject of lawsuits, so that you can be sure that the property has no litigation. It is noteworthy that if the certificates in the name of the applicant and spouse, obtain the positive result, it is necessary to examine what type of action, and if the property is the subject of this action, otherwise there is no obstacle to the processing of the usucapion by extrajudicial means. This is the understanding of the author Leonardo Brandelli, “If the certificates point to some personal actions progress of the usucapion” (BRANDELLI, 2016 p. 81).
You must accompany the application with all documents that prove the origin, nature and time and the entire possessory chain, such as the payment of taxes and fees that are levied on the property. Ordinary adverse possession in addition to the other requirements also provides for the need for the Fair Title.
If the property usucapiendo is rural, and is framed in the range of area in which georeferencing is mandatory, in accordance with law 10.267/2001, this should accompany the request as well.
3.3 PROCEDURE IN THE TABELIONATO OF NOTES
The processing of the usucapion by the extrajudicial sphere will bring reflections in the tabelionates of notes, because it is in the tabelionato of notes that the procedure will begin. In this topic, we will discuss the entire procedure that should be performed by the notary of notes for the processing of the usucapion in the real estate registry.
3.3.1 MINING OF ATA NOTARIAL
The notary is endowed with public faith, and has the prerogative to attest to facts, which he experiences, taking into account his visual perception, auditory, tactile, olfactory. The notary’s public faith has the excuse to give authenticity to evidence of facts. The author Leonardo Brandelli (BRANDELLI, 2016, p 74) conceptualizes the notarial ata as follows:
The notarial ata is the public instrument by which the notary captures, by his senses, a certain situation, a certain fact, and the transfer to his notebooks or to another document.It is the apprehension of an act or fact, by the notary, and the transcription of this perception in its own document.
Article 1,071 of the new code of civil procedure (BRASIL, 2015), introduced Art. 216-A to Law 6.015/73, let’s see:
Art. 1.071. Chapter III of Title V of Law No. 6,015 of December 31, 1973 (Public Records Act), comes into force in addition to the following art. 216-A:
Art. 216-A.Without prejudice to the judicial means, the application for extrajudicial recognition of usucapion is accepted, which will be
directly before the registry of the property registry of the district in which the property is located usucapiendo, at the request of the interested party, represented by lawyer, instructed with:
I – notarial ata drawn up by the notary, attesting the time of possession of the applicant and its predecessors, as the case may be and its circumstances; (…).
The notarial ata drawn up by notary to attest to the possession of the applicant, is a representation of the truth perceived by the notary, who will issue an opinion of what he heard, saw, witnessed, regarding the property, its occupation, and all the circumstances that are possible to verify. The notary will till the notarial ata, without making any value judgment, because it is not up to him this function, it is the registrar who will do the analysis, carrying the real estate registrar is not bound to the notarial ata. The minutes are a means of evidence available to the registrar.
At this initial stage of the extrajudicial usucapion procedure the notary will check whether there are the legal presuppositions for the drafting of the minutes, proving the requirements to define the species of usucapion.
The applicant needs to convince the notary that he holds possession in the property object of the usucapion, in a meek and peaceful manner, with animus domini for a period of time, in a public and uninterrupted way. To do so, you must present all the supporting documents that can confirm this situation, as well as to show how ownership is exercised in the property. To do so, the notary must perform diligence in the property to attest to the possession.
The notary can avail himself of all evidential means, performing diligence on site, listening to witnesses, in order to prove and attest if the requirements for the required usucapion modality are present.
Some internal affairs of the justice of states of the Brazilian federation published provision on the procedure of extrajudicial usucapion. However, some doubts and differences of understanding still hung over the matter. Among the doubts that arose, is what content that the notarial ata should contain to be a means of proof in which the real estate registrar will avail itself when analyzing and processing the usucapion. Article 216-A of the law of public records, listed as one of the requirements, the notarial ata drawn up by notary attesting to the time of possession, but did not bring more information about the content of the notarial ata.
The National Council of Justice (CNJ), solved this issue by publishing the provision 65/2017, which provides for the processing of extrajudicial usucapion with national scope, resolving some doubts and standardizing the procedures for the implementation of the law. Art. 4º, I of provision 65/2017 (BRASIL, 2017), provides about the information that the notarial ata should contain, let’s see:
Art. 4º The application shall be signed by a lawyer or a public defender consisting of the applicant and instructed with the following documents:
I – ata notarial with the qualification, e-mail address, domicile and residence of the applicant and his spouse or partner, if any, and the owner of the property launched on the registration object of the usucapion that attests:
a) the description of the property as shown in the registration of the registration in case of individualized property or the description of the area in case of non-individualization, and should also include the characteristics of the property, such as the existence of building, improvement or any accession in the property usucapiendo;
(b) the time and characteristics of the applicant’s ownership and its predecessors;
c) the form of acquisition of ownership of the property by the requesting party;
d) the desired usucapion modality and its legal or constitutional basis;
(e) the number of properties affected by the purchase claim and the location: whether they are situated in one or more constituencies;
f) the value of the property;
(g) other information that the notary of notes deems necessary for the investigation of the procedure, such as testimony from witnesses or confronting parties; (…)
This provision ing device contributed in an elementary way to address the issues raised in the different states of the federation about the notarial act, pacifying the understanding at the national level. Let’s see that the understanding of the national council of justice, is that the notary formalize in notanotarial minutes the most important requirements required for the extrajudicial usucapion, so that the real estate registrar, already receives a notarial ata inthe main requirements to the processing.
The provision mentions in Article 4, that the minutes should contain the description of the property usucapiendo. In the event that the notary can make this description in the minutes, it is appropriate that among the documents that will be presented, is the plan and descriptive memorial, so that in diligence, the notary can make the conference of the area and other characteristics of the property usucapiendo, and can to count on the help of a professional for the measurement.
The notarial ata shall contain and all the facts verified by the notary, in a thorough manner in order to answer any doubt regarding the period of possession exercised by the owner. Some information is fundamental for the drafting of the notarial ata. First, the full qualification of the applicant, and the assistant attorney. Detailed information of the diligence performed in the property, describing the characteristics, existing improvements.
It is also essential to describe the documents submitted to the notary which lead to the belief that the applicant holds possession of the property, as well as the documents of the entire possessive chain for the compute of time, where appropriate. It should contain information of the real estate certificate of the registration of the property, or the negative certificate inthe form that the property is not registered in the real estate registry. It is also necessary to describe the certificates of distributors, and the information contained in the plant and descriptive memorial.
Depending on the type of usucapion desired, proof of fair title is required. The minutes should also contain the species of usucapion, and market value of the property.
3.4 PROCESSING IN THE REGISTER OF REAL ESTATE
The applicant, represented by a lawyer, must present the application to the real estate registrar, together with all supporting documents that gave rise to the request, for the due processing of the extrajudicial usucapion possession that is being sought, and compliance with legal requirements must be observed.
3.4.1 REGISTRATION PRENOTATION AND QUALIFICATION
The first step for the processing of usucapion in the registration of real estate is the prenotation, which consists of filing the application accompanied by the documents provided for by law, in the protocol book of the registral service.
At the time of the protocol, no thorough verification of the documents submitted is carried out. The registrar may make a superficial analysis to verify if there is any obstacle to the request, however, it is not at this stage that the registrar will make the registral qualification, to verify if the assumptions are present. If this quick analysis is found some bias, the registrar can inform the lawyer, but can not create obstacle to the protocol, that even knowing the addiction may have the request filed.
According to law 6.015 / 73, the period between the protocol and the registration in the real estate registry must be up to thirty days. However, in the case of processing extrajudicial usucapion possession, in accordance with paragraph 1 of article 216-A of Law 6,015 / 73, this period may be extended until the acceptance or rejection of the request, as the forecast for the processing time of this institute exceeds thirty days.
After the protocol of the file, the registrar will perform the procedure, which consists of analyzing all the pages of the process, making the numbering and initialing them. Then pass the registral qualification, which is an elementary phase in the procedure. At that time will make a legal analysis of the application, verifying that all the requirements provided for by law are present, analyzing the evidence produced, verifying that it meets the conditions according to the type of the usucapion.
Article 3 of provision No. 65/2017 (BRASIL, 2017) of the National Council of Justice, standardized what information should be included in the application should be signed by a lawyer or public defender, let’s see:
Art. 3º The application for extrajudicial recognition of the usucapion will meet, as it may be, the requirements of the application, established by article 319 of the Code of Civil Procedure – CPC, as well as indicate:
I – the required usucapion modality and its legal or constitutional basis;’
II – the origin and characteristics of possession, the existence of building, improvement or any accession in the property usucapiendo, with reference to the respective dates of occurrence;
III – the name and marital status of all previous owners whose time of possession was added to that of the applicant to complete the acquisition period;
IV – the registration or transcription number of the area where the property is inserted usucapiendo or the information that is not registered or transcribed;
V – the value assigned to the property usucapiendo.
In this way, the registrar when making the registral qualification must observe whether this information is present in the application.
We passed the analysis of formal requirements for processing, according to article 216-A of law 6.015/73 (BRASIL, 1973):
Art. 216-A.Without prejudice to the judicial means, the application for extrajudicial recognition of usucapion is admitted, which will be processed directly before the registry of properties of the district in which the property is located usucapiendo, at the request of the interested party, represented by lawyer, instructed with: (Included by Law No. 13.105, 2015) (Term)
I – notarial ata drawn up by the notary, attesting the time of possession of the applicant and its predecessors, as the case and its circumstances, applying the provisions of Art. 384 of Law No. 13,105 of March 16, 2015 (Code of Civil Procedure); (Wording given by Law No. 13,465, 2017)
II – plant and descriptive memorial signed by legally qualified professional, with proof of annotation of technical responsibility in the respective professional supervisory board, and by the holders of rights registered or registered in the registration of the property usucapiendo or in the registration of the confining properties; (Wording given by Law No. 13,465, 2017)
III – negative certificates of the distributors of the district of the situation of the property and the domicile of the applicant; (Included in Law No. 13,105, 2015) (Term)
IV – fair title or any other documents demonstrating the origin, continuity, nature and time of possession, such as the payment of taxes and fees on the property.(Included in Law No. 13,105, 2015) (Term)
§ 1 The application will be requested by the registrar, extending the period of the prenotation until the acceptance or rejection of the application. (Included in Law No. 13,105, 2015) (Term)
§ 2 If the plant does not contain the signature of any of the rightholders registered or registered on the registration of the property using or on the registration of the condoning properties, the owner will be notified by the competent registrar, personally or by mail with acknowledgement of receipt, to express express consent in fifteen days, interpreted the silence as agreement.
After this registral qualification, the registrar will verify whether all the requirements are present, deciding whether or not to proceed with the procedure.
In case of missing any requirement, the registrar will make a note of requirement, specifying what needs to be fulfilled so that the applicant can fulfill to achieve processing in the registration of real estate.
If the applicant does not agree with the requirements raised by the registrar, he may avail himself of the procedure of raising doubt, where the registrar will forward the documents filed together with the requirement note, so that the judge decides whether the requirement is well founded or unfounded.
3.4.2 ADMINISTRATIVE JUSTIFICATION
The registrar is not bound by the evidence constituted in the supporting documents, or even in the notarial ata that attests to the possession or notarial ata with witness evidence. If the documentation accompanying the application still has doubts, or are not sufficient and convincing, the registrar may avail itself of the procedure of administrative justification which the applicant may produce other means of evidence, such as documentary, images, witnesses and others. You can also perform due diligence on the property using. Let us look at this provision in § 15 of Article 216-A of Law 6.015/73 (BRASIL, 1973):
§ 15. In the event of the absence or insufficiency of the documents to which item IV of the caput of this article is treated, the possession and other necessary data may be proven in an administrative justification procedure before the extrajudicial service, which shall comply, as appropriate, with the provisions of Paragraph 5 of Art. 381 and the rite provided for in the arts. 382 and 383 of Law No. 13,105 of March 16, 2015 (Code of Civil Procedure). (Included in Law No. 13,465, 2017)
After the necessary evidence is produced, if applicable, and there is no doubt and there is no requirement to be met, the registrar will go to the next phase of the procedure.
3.4.3 NOTIFICATIONS
With registral qualification, the next step is the signatures of all rightholders, and confronting neighbors. If all subscriptions are available, the procedure continues to be passed on to public entities. However, if any signature is missing, the registrar moves on to the notification stage, which will do in person, or by mail with acknowledgete of receipt, or through the Registration of titles and documents, which must express consent or challenge within 15 days from the date it was notified, where silence matters in consent.
We can observe that the great advance of this institute, is in this phase, where Law nº 13.465, of 2017, changed § 2º and § 13º of article 216-A of Law 6.015 / 73, bringing the solution to the great obstacle in the effectiveness of institute of extrajudicial usucapion, which was the need to express consent.
The new wording of the article provides that in case the rightholders are in an uncertain place and not known, the notification provided for will be published in a newspaper of great circulation twice, counting the period of fifteen days between each notice, and interpreting the silence as agreement. We move on to the analysis of § 2 and § 13 of Article 216-A of Law 6.015/73 (BRASIL, 1973):
§ 2 If the plant does not contain the signature of any of the rightholders registered or registered on the registration of the property using or on the registration of the condoning properties, the owner will be notified by the competent registrar, personally or by mail with acknowledgement of receipt, to express express consent in fifteen days, interpreted the silence as agreement. (Wording given by Law No. 13,465, 2017)
(…)
§ 13. For the purpose of § 2 of this article, if it is not found notifying him or if he is in an uncertain or not known place, this fact will be certified by the registrar, who must promote his notification by notice by publication, twice, in a local newspaper of great circulation, for a period of fifteen days each, interpreted the silence of the notifying as agreement. (Included in Law No. 13,465, 2017)
After compliance with the appropriate notifications, and if there is a challenge within the period stipulated by law, the registrar may notify the applicant, the lawyer and other interested parties to appear at the office of the out-of-court service, to participate in a hearing to enter an agreement between the parties.
Leaving fruitful the conciliation hearing, the registrar, will move on to the next step, which is to give science to public entities, the Union, the State, the Municipality or Federal District if applicable.
If there is no conciliation between the parties, it will not be possible to recognize the usucapion by extrajudicial means, then the registrar will make a final note reporting the challenge, and the applicant may file an action, adhering to the common procedure.
When there is no challenge the registrar will give science to public entities, Union, State, and municipality or Federal District if applicable for demonstration in fifteen days. Some argue that this notification to give science to public entities may be concomitant with the notifications of the holders of rights in rem on the property, contributing to the speed of the procedure.
Finally, after the notification of public entities, and there is no demonstration, the official must publish notice in a newspaper of great circulation, for the science of interested third parties, for demonstration within fifteen days.
3.4.4 REGISTRATION OF USUCAPION EXTRAJUDICIAL
If there is no manifestation of interested third parties, and the notifications are fulfilled, and there is no challenge the documentation is in accordance with the requirements laid down, the registrar will register the acquisition of the property on behalf of the applicant.
When the description of the property coincides with the description on the registration, no new registration will be opened, the registration will be made on the same registration. In this situation there is a break with the previous owner, because the acquisition by usucapion is originated, however the registration will not be closed, in compliance with the history of registration.
When the description of the property does not match that of the registration, or if the property is not yet registered in the registration of real estate, a registration will be opened to perform the registration of the property usucapiendo.
For the opening of registration must comply with the essential requirements for this act, provided for in the law of public records in Article 176, § 1, II (BRASIL, 1973):
§ 1 – The bookkeeping of Book 2 shall comply with the following rules:
(…)
II – are registration requirements:
1) the order number, which will follow infinity;
2) the date;
3) the identification of the property, which will be made with indication:(Writing given by Law No. 10,267, 2001)
a – if rural, the property code, the data contained in the CCIR, the name and its characteristics, confrontations, location and area; (Included in Law No. 10,267, 2001)
b – if urban, its characteristics and confrontations, location, area, patio, number and its cadastral designation, if any. (Included in Law No. 10,267, 2001)
4) the name, domicile and nationality of the owner, as well as:
a) in the case of an individual, marital status, profession, registration number in the Register of Individuals of the Ministry of Finance or the General Registration of identity card, or lack thereof, its affiliation;
b) being a legal entity, the registered office and the registration number in the General Register of Taxpayers of the Ministry of Finance;
5) the number of the previous record;
After all the processing, the processing of the extrajudicial usucapion ends with the registration, in book 02 of the registration of real estate, and has the character of acquisition originating from the property.
3.5 CONTRIBUTIONS
The code of civil procedure brought to the legal system the usucapion by extrajudicial means. The tendency is to reduce the number of such actions in court, collaborating for the judiciary to process cases that are really litigious, and that needs judicial protection. The processing by extrajudicial means is an option of the applicant, who can choose between the extrajudicial and the judicial.
With this possibility the population is benefiting from the speed, because the procedure has become more dynamic. It is possible for a procedure to be completed in a three-month range. In this respect there is no doubt that this procedure has very positively innoseed the legal system.
This forecast also brought progress towards predicting all species of usucapion to be processed by the real estate registrar, making this institute have a generalization to any applicant who meets the requirements of any type of usucapion.
FINAL CONSIDERATIONS
Among the proposals brought by the new code of civil procedure, this article addressed with emphasis the institute of extrajudicial usucapion, as a way of dejudicialization of demands. The out-of-court procedure, its stages, and the requirements laid down by law, which has the power to simplify procedures, were exploited in order to obtain more speed in the provision of judicial protection.
It was found that the notary and registration services can contribute greatly in the process of dejudicialization, maximizing the effective ways of rights. It was concluded that the extrajudicial procedure of usucapion contributes in an elementary way to the guarantee of fundamental rights, to the dignity of the human person, in particular the right of property, which is also a social function, for the benefit of the collectivity, as provided for in Article 5, item XXII of the Magma letter.
From the doctrinal and legislative research carried out, it was possible to observe the importance of usucapion institute over the years, and that according to the longings of society is evolving and adapting to fulfill its function.
From the study, it was analyzed that the New Code of Civil Procedure was innocuous bringing the prediction of usucapion through extrajudicial means, however, the original wording of Article 1.071 still presented an obstacle to the effectiveness of the institute, when it predicted that the silence of the tabular owner, imported in disagreement of the procedure.
However, this problem was solved by the entry into force of law 13,465 of July 11, 2017, which provides for notification by notice in cases where there is no manifestation. Finally, it was analyzed that the institute fulfills the function for which it was created.
It was identified that another advance in terms of regulation of this new institute, was the publication of provision no. 65 of 14/12/2017 by the National Council of Justice, which regulated the procedure nationwide, establishing guidelines for the procedure of extrajudicial usucapion in notary services and registration of real estate, finally, standardizing the procedure and pacifying understandings throughout the country.
The institute of extrajudicial usucapion is still very new in the legal system, but the evidence indicates that this institute has been bringing effectiveness and is fulfilling its objective.
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[1] Specialist in Notarial and Registral Law with training for teaching in the Higher Magisterium by Damásio College; Graduated in Administration UNIC – Cuiabá College. Graduated in Law (Uninassau- Caruaru/PE); Specializing in Real Estate Law and Business from Damásio College.
Submitted: August, 2020.
Approved: October, 2020.
