A arguição de usucapião como tese defensiva e a (im)possibilidade de registro da sentença que julgue improcedente os pedidos iniciais.

Abstract

The purpose of this monograph is to investigate the possibility of the claim of usucapion as a defensive thesis in petition and possessory actions, as well as what effects the eventual sentence of acceptance of the defense will have in relation to the parties, considering the possibility of registration in the real estate registry of the judgment that recognized the fulfillment of the requirements of any of the forms of adverse possession, in order to acquire the domain of the thing. Such research becomes relevant due to the role that possession and property play in our society, mainly in relation to its social functions, and the fact that when the defensive thesis of adverse possession is accepted, with the possibility of declaring dominance, there will be an enormous procedural speed and the decongestion of the judiciary, since it will be necessary to file a new demand for the acquisition of property of the property that was already in dispute. It happens that, despite the legal provisions, the sentence that welcomes the defense based on the fulfillment of the requirements of some of the modalities of the acquisition prescription has had effect only between the parties of the process, having force only to reach the unfounded of the plaintiff's requests, and not to declare the defendant's property, ignoring the speed and procedural economy afforded to all those interested in the deed. The present research aims at investigating the possibility, or not, of registering a registration with a competent notary of the decision that dismissed any possible possessory or petitionary claim based on the existence of requirements for adverse possession, attributing to it erga omnes effects, through doctrinal research. and jurisprudential, seeking to conclude whether any attribution of the said effect would or would not violate civil and constitutional procedural principles. Thus, it is possible to conclude that it is necessary to analyze each specific case, taking into account the circumstances of each case, in order to analyze the feasibility of the sentence registration that welcomes the defense based on adverse possession. As for the methodology, we used the deductive method, starting from concepts of property, possession and adverse possession, its principles and its procedural procedure, through doctrinal reviews on the topic, in order to enable the understanding of both theory, and the practice of the subject. In addition, the situation will be explored, through the inductive method, with research in particular cases, such as jurisprudential reviews, and it will be possible to conclude, along with the doctrinal understanding exposed, a general conclusion about the possible possibility of applying the erga omnes effect. in the sentence that recognizes the fulfillment of the requirements of adverse possession in an eventual possessory or petitionary demand.