Property Law: Understanding Possession and Ownership in Brazilian Civil Code
LAW OF THINGS (Article 1196 to 1510 CC)
Property law: the set of rules governing relations between people and things. Not all things are objects of this right which is appropriated only to things of interest and with some economic value.
PERSONAL RIGHTS
REAL RIGHTS
Law is the one that gives its holder the right to act against certain people to get the prescription that the court is entitled.
REAL LAW
It is one that gives the holder the right to act against everything and against everyone who opposes him.
- While the personal right is born of the relationship with the right person, the real right is born with something.
- The person liable to a personal right is always the right person, while the taxpayer of a real right is unknown or is anyone who opposes this right.
Classification of Ownership
a) Direct or Indirect Possession
Direct ownership: that is exercised by one who has something in his physical power because of a personal right (contract) or a real right (usufruct), or the direct owner is one who holds everything in its power to the consent of its owner.
Indirect ownership: that is exercised by the owner of the thing that is in the hands of another person because of a personal or real right.
A leases property to B, B of possession of property, has power over the thing, is possessed by law. The owner is an indirect owner for not being with the thing directly.
Deposit, usufruct, loan (lending this young eraser)
b) Compossessão
Compossessão occurs when two or more persons exercise ownership of the same quality over the same thing. The Compossessão is to take office just as the condo is to the joint owner (domain). In Compossessão each possessor, although entitled to only part of the ideal thing, exercises their right over the thing entirely.
4 people have this property
If the MST invades this area, each one can defend it… though each has an ideal part of the thing, he exercises his right as if in full.
In the previous example, the possessions are different, in Compossessão they have the same quality. In subletting, one possession does not validate the other.
In lending, both can live together harmoniously while different, one does not exclude the other.
When the same thing happens on a direct or indirect ownership, there will be the phenomenon called Compossessão, considering that in Compossessão the possession has the same qualities. The direct ownership does not exclude the indirect, since both are pursued concurrently.
The indirect possessor may not affect the exercise of direct possession. Both can defend property against anyone, including…
Both the direct and indirect owner, as they can stand alone as against third parties, in joint ownership may also do so against one another.
c) Fair or Unfair Possession
Fair Possession: is one that is not tainted by addiction or violence or illegality of precariousness.
Unjust possession: it is one that is tainted by any such defects.
Violent Possession is that gained through violence against the owner or lawful possessor of the thing.
It’s when someone steals, through violence, the person has unfair possession.
Illegal possession: that is acquired on the sly (back door) ex.: When someone steals something, it is an unfair possession, tainted by illegality.
Precarious possession: that is tainted by abuse of trust.
The comodatário who refuses to return the thing after the contract ends turns your possession from fair to unfair in the vice of insecurity, namely the abuse of trust that will relieve the LESSOR.
It’s when someone betrays that trust, the deadline passes, and trespass occurs, that makes it unfair possession.
Exs.:
Violent possession – thief, burglar
Illegal – marginal stole the thing.
Precarious tenure: abuse of confidence from the owner,
Doubts: comodatário: repossession, Lessee: another action of eviction.
LESSOR may bring suit
Lessee has the right to ensure necessary improvements made and useful…. comodatário can take urgent action….: Horse bitten by snake.. he’ll call LESSOR…… Comodatário can be repaid….
d) Convalescence of Tenure
Both the violent possession and the illegal possession may be convalecida, or become fair after a year and a day of interruption of violence or illegality.
Pecuiar problem:
Someone steals a watch and hides it under the mattress, while hiding it is unfair possession… external behavior: put the watch on the wrist and use it as if it was his, and after a year and a day it becomes fair possession.
The objective theory says that the public and visible behavior of keeping it in a drawer until he uses it is illegal, and putting it on the wrist and starting to use it for a year and a day in a calm and peaceful way makes it fair possession.
Eg: Well the deadline is still 15 years
Well Mobile is 3 years.
If someone steals a vehicle and puts it in the garage and does not use it, it is illegal possession.
If you start to use it publicly, it becomes direct possession.. after a year.. and starts running
The precarious tenure does not become fair, only illegal and violent possession can become fair, precarious possession for 20 years cannot become fair.. lending something to someone, that ownership can never be fair.
Convalescence: became valid
The convalescence of ownership is provided by the Civil Code art.1208.
e) Possession of Good Faith or Bad Faith
Possession of good faith is when the possessor is unaware of the vices or defects that taint it. Possessor in bad faith is one who has knowledge of the defects of his possession. The possessor in good faith becomes the possessor in bad faith from the moment he becomes aware of the defects of his possession.
It is important to know because of their right, they are entitled to be indemnified for the improvements.
Acquire farm B, get writing, record, I own… I think it is fair for already booked for me the docs are valid, then there is C that is the real owner and files a lawsuit to nullify the current owner of the contract… from the moment that I am quoted.. knowing that something is wrong….. the improvements prior to service will be compensated later only if necessary if not… then do not get the person… while ignoring defects of ownership, is possessed of good faith….
While unfair or fair possession is identified by the external behavior of the possessor, because of objective elements, the possession of good or bad faith is identified by the behavior inside the holder, or by subjective elements.
What it takes into account to know.. see the explicit aspects… has acted as precarious, collusion, bad faith is… the subjective good faith… do not know… Attention (SAM)
See as having bought the thing… whether it is unfair to the parent’s bad faith and for the child is unfair.
My father steals a watch and I get it fairly by inheritance. There can be held in bad faith and stole a watch began to use it is just possession.
Escape unjust and in bad faith
Hence
f) New or Old Possession
g) Possession ad interdict
h) Possession ad usucapione
SAM UP HERE
Tuesday, March 23, 2010 22:11:23
New and Old Possession
Possession ad interdict
Possession ad usucapionem
Possession ad usucapionem
Ownership is only fair that may have this character. It is the possession that gives its holder the right to obtain ownership of the thing through the act of usurpation.
SAM UP HERE!
The Acquisition of Ownership (art.1204 to 1209)
1 – Concept
You gain possession from the very moment that someone in his own name begins to carry on something any one of the powers (fruendi, utendi…) inherent in the property.
2 – Regarding the acquisition of ownership, it can be original or derivative.
Give up the original purchase when there is no legal relationship between the new and the old owner. Derived from the acquisition occurs when there is a legal relationship between the new and the old owner.
Originally acquisition – it occurs through the seizure. Ownership is seized when the owner moves the thing in his power from one place to other. The seizure can happen in unowned things and things with the owner.
Things without an owner“Res Nulliu” – something that had never owned
One who takes possession of a”res nulliu” and a”res derelicta” immediately acquires ownership and possession of legitimate, unlike the one that takes hold of things do not get lost possession but the legal obligation to return it to its owner or does not fit the competent authority within 15 days under penalty of his conduct typify a criminal offense.
The seizure can occur through acts of violence or illegal acts which will generate tenure after just a year and a day of ceasing the violence or illegality.
Induction of Accession
The accession is not the means to acquire possession but merely a privilege granted to the possessor of adding to the time of possession before the time of possession.
With the accession of the new ownership comes with all the vices of previous ownership.
Acquisition Act”inter vivo” (contracts)
Act”between death (inheritance)
When purchasing act”inter vivo” the accession is optional and the acquisition of”ban” of the accession is obligatory.
Eg possessing property for 2 years, to take prescription within 10 years must have good faith. If you stay with me do not bring the good faith……….
Acts that do not deliver legal possession
The mere possession or mere tolerance or permission in the possession of a thing does not generate legal possession but just as precarious tenure.
Possession of movable property which garnish
It is assumed that the possession of movable property that a trim is the possessor of the property. This presumption is “jury-off” (it’s the presumption that admits evidence to the contrary) Eg, it is assumed that the children of married women… dna evidence…
Ex.2: bailiff will pawn household items, fridge, wardrobe, officer assumes that this property is the owner of the property.
Effects of Possession
- Possessive protection Extrajudicial
- Judicial
- Perception of fruit
- Liability for damage on the thing
- Rights to compensation for improvements
Extrajudicial possessive protection – Does the paragraph 1 of the CC art.1210 that the possessor dispossessed or disturbed can rejoin or remain in the possession of using their own forces provided it is done right and with the necessary means. This defense is called extrajudicial defense.
Age in leg.defesa using moderate means who rejects unjust aggression or imminent.
Posse dispossessed and lost possession / Possession troubled tenure is molested, disturbed. If someone takes my home and I have contact with it, there is a robbery. Enter and remain inside this harassing, disturbing… can in your own strength and parcel of the possession disturbing.. can not abuse it.
Owner of large estates do not use this prerogative to invasion MST mo…. kkkk
Thursday, March 25, 2010
Judicial Protection
The ownership is legally protected by possessory interdicts or by possessory actions which says the CPC as are the action of repossession, maintenance action for possession and interdiction action.
Action of ejectment – art.924 cpc
“Art 924.CPC Governing the maintenance procedure and to repossess the standards of the following section, when brought within year and day of the disturbance or dispossession, past the deadline, will be ordinary, not losing, however, the character possessory.
This action is appropriate for the owner who had the pluck their possession, or lost. This action is provided by art.924 of the CPC.
If the application is properly completed with sufficient evidence, the judge may grant a preliminary injunction reinstating the possessor is in possession of it and without hearing the opposing party. If necessary the judge may designate a hearing only after prior justification to grant or deny the injunction.
The deadline for response runs from the order that grant or deny the injunction.
“It may have ordinary rite when dispossession by day and year… new robbery, the judge can since the original is proven to date… can give without hearing the party against the filling and then follow the ordinary rite.”
Action Maintenance Posse – art.924 CPC.
It is the appropriate action for the owner who has his troubled tenure or impaired. Just as in earlier action, the judge may grant or deny the injunction of keeping possession.
“There is no disturbance oral, if someone said I’ll take your house, there is disturbance, must be taken by concrete acts, eg.: Suj. invade land and build a shack.”
Action interdiction – art.932 CPC
“Art 932.CPC The possessor direct or indirect, which has just fear of being molested in possession, may bring to the judge that hold the disturbance or dispossession imminent, with a warrant prohibitory, which determined the defendant comin financial penalty if violates the precept.”
This action is provided by art.932 of CPC
It is the appropriate action for the owner who has possession or threatened disturbance of dispossession. If in the course of action, the threat materialize if the action becomes automatically the reintegration or maintenance.
This action has the character of money which the court in its ruling will set a penalty for threatening if threats persist.
According to art.920 of the CPC, bringing an action for possession by another does not inhibit the magistrate judge correctly of the action that should be proposed.
“Section 920 CPC. Bringing an action for possession rather than another not prevent the judge knows the application and granting legal protection corresponding to that of which the requirements have been established.”
It is unclear whether there was robbery, disturbance threat.. .. even enter wrong action, the judge must judge correctly. In the civil code, speech is only 3 actions.
1 – PP
2 – Perception of fruit (Art.1212 the 1214 CC)
Fruit is the product produced by a regular thing without depletion of the source. The fruit quality of regular use of a thing is your accessory and as such follows the fortunes of the principal.
According to the law, the possessor in good faith is entitled to the fruits perceived
Perceived harvested and consumed, sold eaten not matter…… kk
The fruit perceived need not compensate…
The possessor in bad faith is not entitled to any fruit must also indemnify the value of fruits and even the perceived value of those who by their guilt were not collected.
The possessor in bad faith would only be entitled to reimbursement of expenses he had as a conservation tract and the source (fruit of course)
3 – Liability for damages suffered by the thing (the Art.1217 1218)
The possessor in good faith alone is responsible for repairing the damage that your fault the thing has.
According Caputti Silvio Rodriguez ta wrong in this matter.
The possessor in bad faith is responsible for all damages that the same thing by those who suffer accidental caused by force majeure or unforeseeable circumstances. The possessor in bad faith only if disclaims such liability if he proves that the damage occurred regardless of ownership.
4 – Right to Compensation for Improvements (Art.1219)
Section 1219. The possessor in good faith is entitled to compensation for the improvements needed and useful and, as the voluptuous, unless it is paid to raise them when the can without the expense of the thing, and may exercise the right of retention by value of the improvements necessary and useful.
Critique: failure to adopt the theory Ihering..
According to art.1219 CC, the possessor in good faith is entitled to receive or be compensated for the improvements needed and useful, including a lien to ensure payment.
Regarding the improvements voluptuous if they are not compensated, the possessor in good faith may raise them.
The provisions of this article conflict with the provisions of art.578 DC, whose paper is in line with art.35 of the law of tenancy.
According to these two articles useful improvements only if medical costs are taken with permission of the lessor. The legislature in drawing up the CC art.1219 certainly forgot that the lessee is a direct owner of the thing leased
The possessor in bad faith alone is entitled to be indemnified for necessary improvements that he made the thing.
Know befeitoria required (made for the conservation of the thing, the thing perishes not made) good (increases the usefulness of thing) voluptuous (ornament, delight for the eyes and coração.risos…
Loss of Possession (Art.1223 to 1224)
Section 1223. You lose possession when it ceases, though against the will of the possessor power over the well, which refers to art. 1196.
Section 1224. Only considered for those who lost possession did not witness the robbery when, having heard from him, refrain from returning the item, or trying to recover it, it is violently repelled.
You lost possession from the time of termination of any or all of the powers attaching to property.
If someone steals lost possession and there enjoy..
For the missing, or for those who have witnessed the robbery he just loses possession from the time they took note of dispossession is not in possession restores lost or trying to be violently repelled.
Traveling and arriving 20 days later and take notice of dispossession practiced, it can force itself expulsion by the attacker, robber. If tried and was rebuffed should use the possessive protection order.