A usucapião extra judicial introduzida pela lei n.13105 de 2015: entre a efetividade e a celeridade

Abstract

he adverse possession is one of the basic institutes of brazilian civil law, being one of the most important ways of original acquisition of property and land regularization. In contrast, o judicial procedure of adverse possession is traditionally slow, often resulting in the incapacity of effective guardianship of the right of property as result of the Judiciary Power slowness itself. In this context the extrajudicial procedure of adverse possession, introduced by the Law n. 13.105 of 2015 (Code of Civil Process), which added the article 216-A to the Law n. 6.105, of 1973. The procedure removed from jurisdictional appreciation the guardianship of adverse possession, taking it to the administrative sphere, allowing the processing before the Office of Registry of Properties, promising with this to impress celerity to the declaration of adverse property acquisition. The present paper analyze if the extrajudicial adverse possession is, in fact, capable of allowing celerity and effectiveness to the acquisition of property by adverse possession. To achieve that goal, it will be analyzed the principles of the institute and of the removal from jurisdictional appreciation of adverse possession, as well as a critical analysis of the procedure itself as opposed to its objectives, stating from a legislative and doctrinal analysis. It was concluded that the extrajudicial adverse possession is an adequate measure in the way that allocates the guardianship of material law to the correct sphere, as pretended by the principles of the institute, but it fails on the way that is established on not being able of disposing the bureaucratic tradition and allowing an effective guardianship of adverse possession and property law.