Can a legal entity acquire ownership through adverse possession? Understand the requirements and applicable modalities.
Usucaption is a well-established legal concept that enables the acquisition of property ownership through prolonged and qualified possession.
Traditionally, the topic is associated with individuals, mainly because it more frequently involves the regularization of housing, a fundamental right whose social demand is significantly more visible than the regularization of properties used by companies and other entities.
However, the possibility of Legal entities acquiring real estate through adverse possession is fully permitted under Brazilian law. and represents a relevant strategic tool for the regularization of business real estate assets.
To reiterate: a legal entity has the right to acquire ownership of real estate through adverse possession. The success of the claim, however, depends on the rigorous fulfillment of the legal requirements.
The Legitimacy of a Legal Entity in Adverse Possession
Some people, and even professionals not specialized in the area, mistakenly believe that adverse possession is restricted to individuals, arguing that the 1988 Federal Constitution expressly provides only for modalities related to urban housing and small rural properties.
However, there is no constitutional or legal prohibition against adverse possession by legal entities. Several types of adverse possession already existed even before the 1988 Constitution and were expressly consolidated by the 2002 Civil Code, which makes no distinction between natural persons and legal entities in cases not related to housing or rural subsistence.
The legislation establishes that "whoever" exercises possession with the requirements demanded by law may acquire ownership, an expression broad enough to encompass both natural and legal persons.
The jurisprudence of Brazilian courts, including the Superior Court of Justice, is consistent in recognizing this legitimacy, provided that the legal entity proves to be the effective possessor of the property, in accordance with the requirements of the law.
Essential Requirements for Adverse Possession by Companies and Other Entities
For a legal entity to acquire real estate through adverse possession, it is essential to cumulatively prove the following requirements:
Animus Domini (Owner's Intention)
This is undoubtedly the most relevant and important requirement to be proven in any case of adverse possession.
The company must demonstrate that it holds the title. with the intention of ownership, and not by mere tolerance or as a result of a contract, such as a lease or loan for use.
The Superior Court of Justice has already recognized that, in exceptional situations, possession originating from a contract can undergo substantial alteration. If the property is abandoned by the owner and the possessor begins to act unequivocally as the sole owner, the possession may become eligible for adverse possession, provided that the other legal requirements are met. In this case, the legal entity must prove that it has assumed burdens, necessary improvements, and the exercise of powers typical of ownership.
Peaceful, uninterrupted, and continuous possession
Possession must be exercised. without opposition throughout the entire time period required by the type of adverse possession invoked.
The existence of possessory actions, extrajudicial notifications, or any unequivocal acts of resistance on the part of the registered owner or third parties may disqualify peaceful possession and prevent the recognition of adverse possession.
Expiration of the Legal Deadline
The required possession period varies depending on the type of adverse possession applicable to the case.
What types of adverse possession can be applied to legal entities?
The types of adverse possession suitable for businesses are the so-called extraordinary and ordinary ones.
Extraordinary Adverse Possession:
It is the most comprehensive and robust type of possession. It requires the exercise of possession for 15 uninterrupted years, regardless of the existence of a title of acquisition of possession or proof of good faith in the origin of the possession.
According to the Civil Code and established case law, this period can be reduced to 10 years when the possessor has carried out works or services of a productive nature on the property. It should be noted that simply renting the property to third parties is not sufficient to characterize productive work on the property that would justify the aforementioned reduction of the period.
Ordinary Adverse Possession:
It requires 10 years of possession, provided there is a valid title to the acquisition of possession and good faith.
This is a more restrictive option, but it is viable when the legal entity has documentation that, although unregistered, demonstrates the legitimate origin of the possession.
It is important to highlight that, according to the understanding of the Superior Court of Justice (STJ), the adverse possession of rural property by a Brazilian company under foreign control is subject to specific and more rigorous rules, a topic that will be analyzed in a separate article.
Judicial or extrajudicial adverse possession for legal entities?
Legal entities can choose between the judicial route, which is traditionally longer, or the extrajudicial route, carried out directly at a notary's office.
Extrajudicial adverse possession is a faster and more efficient option, but it requires that there be no dispute over possession and that all holders of rights over the property (registered owner, adjoining landowners, etc.) agree to the request. The absence of disputes and complete documentation are crucial for success in this process.
When should you seek a specialized lawyer?
Adverse possession involving legal entities requires in-depth technical analysis, especially regarding the origin of possession and accounting and tax documentation that demonstrates the... animus domini (such as payment of property tax, utility bills, carrying out improvements), as well as the correct identification of the property and the appropriate legal classification of the applicable modality.
The role of a lawyer is required by law, And the professional specializing in real estate law is essential to structuring a secure strategy, mitigating the risk of rejection, and ensuring the effective regularization of the company's or entity's real estate assets with agility.
Conclusion
Adverse possession is undoubtedly an effective solution for companies and other legal entities that have been using properties for many years without the corresponding registration. In addition to providing legal security, recognition of ownership increases the value of business assets and reduces significant legal risks.
With specialized advice and proper verification of legal requirements, a legal entity can indeed acquire real estate through adverse possession, transforming a de facto situation into a fully recognized property right.
