| dc.description.abstract | There are a large number of properties in Brazil in a situation of irregularity before
the general registry services, and there are several reasons for this, which is
reflected in legal uncertainty in relations involving these assets. Usucapion, a
secular institute through which the subject acquires ownership of assets,
represents an important tool for regularizing the domain of these properties. For
the acquisition of real estate through adverse possession, the subject is only
required to comply with the requirements of any of its modalities, without any
other formality, such as filing an action or request for extrajudicial recognition,
given the declaratory nature of these. With these premises, it is possible to affirm
that there are several properties acquired due to the occurrence of adverse
possession, however in a situation of irregularity - this is because the new owner
did not file a judicial or extrajudicial demand for the certification of the property.
The aforementioned property, therefore, is invisible to the eyes of any creditor of
this new owner who seeks information from the general registry service, often
failing to serve the payment of debts. Even though it is not required to perform
any act aimed at regularizing this property, when the owner does so deliberately
to avoid having this property expropriated to satisfy its obligations, it is
characterized as an illicit act, resulting in sanctions. However, this is not what the
creditor seeks, as he wants to see the debt settled, and the legal system must
present solutions for his situation, especially due to the existence of
unquestionable assets, owned by the debtor, thus guaranteeing the fullest access
to the effective justice. The pledge of ownership rights could represent a solution
to the creditor when this represents an economic value decoupled from the
property, when the adverse possession is not consummated. Once all its
requirements have been fulfilled and adverse possession occurs, it is
meaningless to speak of pledge of ownership rights, as the creditor is interested
in expropriation of the immovable property as property, and there can be no
differentiation in this aspect between the pledge of regular property and pledge
of irregular property. In an interpretation of article 857 of the Code of Civil
Procedure, it is possible to defend the possibility of attachment of the legal
situation of the debtor of owner of property already impaired, recognizing,
incidentally, the adverse possession in the property, which will serve the creditor
to satisfy the obligation. | eng |
