EXTRAJUDICIAL USUCAPTION: VERY BRIEF NOTE

Between 2017 and 2021 I provided services to the municipality of São Miguel do Gostoso, located on the north coast of Rio Grande do Norte, where I established a law firm. As it is a city in full tourist expansion, there is a great demand for properties, which - for the most part - do not have registrations registered in Notary Public Offices.

Therefore, one of the clients' demands - mostly foreigners and people from other parts of Brazil - was the search for the regularization of their property, through adverse possession, aiming at greater legal security, that is, the acquisition of the real right over which possession was exercised.

Of Latin origin, the expression usucaption is formed by the combination of the terms usus and capere, which means taking, acquisition, capture by use. That is, adverse possession is a way of acquiring property and other real rights through the exercise of prolonged possession over time, subject to specific legal requirements[1].

Without being too familiar with the aforementioned matter, it was essential to study the provisions of the Code of Civil Procedure (NCPC/2015) which introduced into the Brazilian legal system the possibility of recognizing any kind of immovable property extrajudicially -in the Competent Real Estate Registry, as well as the analysis of Provision No. 65, of December 14, 2017, of the National Council of Justice (CNJ), which regulated the procedure of extrajudicial adverse possession before the Notary Public and the Real Estate Registry.

Moving on to the practical part, it is also necessary to obtain the check-list - issued by the Registry Office - of the necessary documents, firstly for the issuance of the Notarial Minutes[2], and later for the adverse possession itself. Immediately thereafter, a new meeting with the client is required to clarify each item on the checklist and adjust which documents will be provided by the usucapiendo himself – e.g. fair title, personal documents and other documents that demonstrate the origin, continuity the nature and time of possession – and what are the documents to be obtained by the lawyer himself or steps taken by him -: ex: certificates and declaration of the bordering parties.

Moving on to the practical part, it is also necessary to obtain the check-list - issued by the Registry Office - of the necessary documents, firstly for the issuance of the Notarial Minutes[2], and later for the adverse possession itself.

It is necessary to make it clear that in addition to the related documents, others may be required in the course of the process. Therefore, taking into account the principle of good faith that should guide the relationship between lawyer and client, it is suggested that the legal fees be paid/charged according to the course of the procedure, considering that some document that may be missing it is not possible to obtain, such as, for example, the declaration of consent of any of the tabular or de facto adjoining parties, or even proof of the chain of succession on the occupation of the property.

If any of the unforeseen events occur that cannot be remedied within the scope of extrajudicial adverse possession, and there are the minimum requirements to face the long lawsuit - which lasts between 03 and 04 years -, it is recommended to go to court. Incidentally, it should be noted that the decision of the officer who rejects or accepts the request for adverse possession is merely administrative, not res judicata. Therefore, the applicant who had his application rejected, or even in the course of the extrajudicial procedure, may file a lawsuit to discuss the claimed right.

However, nothing is more rewarding than providing your service and leaving the customer satisfied, with their right – erga omnes – assured and, above all, within a reasonable period of time – an average duration of 1 year, depending on the Notary. Remembering that the effects of the decision are retroactive, but those of the registration are not.

Natal, December 03, 2022.

MARCOS LACERDA ALMEIDA FILHO

OAB/RN 8009

[1] Bocazar, Ana Clara Amaral Arantes. Extrajudicial adverse possession, Leme (SP): JH Mizuno, 2018, p.17.

[2] Martha El Debs (2016, p.89) conceptualizes the notarial act as “the objective narrative of fact, verified or witnessed by the notary, without its value judgment” in Ata Notarial and its reflexes in the New Code of Civil Procedure, Juspodivm , 2016, p.89.