Usucapião compulsória como medida executiva: uma análise interpretativa do artigo 857 do Código de Processo Civil.

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.