A posse e a titulação legal nos termos do artigo 1.228, §§ 4º e 5º do código civil

Abstract

This paper is to study addresses issues regarding the ownership in its various aspects, possession ad usucapionem in particular, land tenure regularization and the possible consequences with regard to the discretion of the Judiciary in relation to the provision established in paragraphs 4 and 5 of article 1.228 of the Civil Code. The Judiciary, due its typical function, must be restricted to the judgment of disputes and, currently, in its judicial activism, creating fundamental norms for society through several CNJ resolutions and other fundamental normative provisions. Here, in specifically, an analysis is made of the provisions of paragraphs 4 and 5 of article 1,228 of the Civil Code and its discretion regarding the definition of an indemnity related to the occupation of lowincome people in other people's property, who have worked there and sought decent forms of housing. The current Civil Code is no longer a simple repertoire aimed at private property and its preservation. It brings up the problem originated by the analized norms of the Civil Code, seeking to confirm that it is a new form of expropriation, called judicial expropriation, or a new kind of adverse possession. Here, the possible problems arising from the discretion granted to the judge to decide on possession ad usucapionem are pointed out, the effect of which will result in the acquisition of immovable property. Through the hypothetical-deductive method, an analysis of the issue centered on the mistakes and successes of the Judiciary is made in this novel business. It is known that the discretion of the Judiciary was amplified by the Civil Law of 2002. It is true that this charge brought procedures previously used in other situations for the simple composition of compensation and evaluation of the occupation. What is reached at the level of final considerations is the correctness of the Civil Code in adopting multiple new forms of land tenure regularization in view of the pressing need for new normative creations in view of this legal impasse, which would, in theory, prevent certain forms of occupation.