THE SPECIAL URBAN INDIVIDUAL AND COLLECTIVE USUCAPION BY INTERVERSIO POSSESSIONIS OF PRECARIOUS TENÇA IN POSSESSION AD USUCAPIONEM PRO MORADA, PRO LABORE E PRO MISERO

Silvestre, Gilberto Fachetti

doi:None

Country	legal foundation	How is the precariousness
Germany	Bürgerliches Gesetzbuch: § 858.	This is the prediction of defects in the acquisition of possession: possession obtained as a result of illegal and defective interference is vitiated. See that the list of vice is not exhaustive. The defect consists in depriving the owner of the thing against his/her will (illegal interference with possession). However, here,precario does not expressly appear as a vice. This leads to the conclusion that the BGB did not deal specifically with this matter, as did the Civil Code in Brazil.
Argentina	2014/2015 Código Civil y Comercial de la Nación: Articles 1921 and 1915. 1869 Código Civil de la República Argentina: Articles 2,364, 2,473 and 2,480.	As in Brazil, the ArgentineCodexlists the vices of possession, also associating them with bad faith (as in thecaputof article 1.201 of the Brazilian Civil Code). Despite the terminology “abuso de confianza” (abuse of trust) , this can be understood as precariousness, as it is the traditional definition. In fact, the Civil Code of 1869 spoke of precarious, violent or clandestine possession. The “interversión” of Article 1,915 draws attention for having a different meaning from that which exists in the Brazilian Civil Code. “En el derecho argentino ladetención precaria–a título de precario– no confiere jamás la posesión, sino la simple tenencia, en consecuencia la ley no le confiere el derecho a las acciones posesorias” (LAMA MORE, 2011, p. 69).
Brazil	Civil Code: arts. 1,200 c/c 1,208. 1916 Civil Code: arts. 489 and 497.	Vice: the possession or detention that derives from it is irregular, that is, the possession is unfair, according to the classification of the Civil Code (art. 1200). This is a peculiarity of Brazilian law and a tradition that dates back to the 1916 Civil Code.
Chile	Civil Code: arts. 915, 2194 and 2195.	Precarious is a special lending figure that attributes possession to the precarist and a special petition, theacción de precario(LEMAITRE, 2017LEMAITRE, Fernando Atria. El sistema de acciones reales, parte especial: la acción de precario. In: Revista de Derecho, vol. XXX, n. 2, p. 57-86, dic. 2017. ).
Spain	Civil Code: Articles 433, 441 and 444.	Precariodoes not appear as a vice.
France	Civil Code: Articles 2263, 2266, 2267, 2268 and 2269.	Precariousness is when someone owns the thing for someone else, but French law designates the situation as “precarious detention”. This qualification is intended to preventusucapioof the thing given to others, or prohibition to prescribe the domain.
Italy	Civil Code: Art. 1141, 1144, 1147, 1163 and 1164.	Possession in good faith is not linked to ignorance of the existence of vices, but to ignorance that owning the thing harms the rights of others. Precariousness is not seen as a vice.
Portugal	Civil Code: Articles 1253, 1261, 1263, 1265 and 1297.	The following conclusions were possible: 1) precarious possession is synonymous with detention; 2) violence and concealment are vices of possession, but not precariousness; 3) there is no prediction as to the situation in case of breach of trust; and 4) there is theinterversio possessionis, whereby possession becomesad usucapionemwhen it becomes peaceful (no violence) and public (no longer hidden).

DETENTION
lawful detention	unlawful detention
1. Servitude of ownership (caput of art. 1.198): they are the family members or servants of ownership; and 2. Tolerance or mere permission (art. 1208,ab initio): situation of seizure of the thing by grantees duly authorized by the legitimate owner.	Tença (art. 1208, in fine): is the unauthorized seizure and obtained through defects.

IS THERE INTERVERSIO POSSESSIONIS OF THE PRECARIOUS TENÇA?
1st line of interpretation	2nd line of interpretation	3rd line of interpretation
Do not transmute into possession ad usucapionem	Transmute in possession ad usucapionem	Transmute in possession ad usucapionem
The normative formulation of art. 1,208 restricts the transformation of tença into possession after the cessation of acts of violence and illegality only, without mentioning the vice of precariousness. Therefore, by excluding it, the law indicates that the precarious tença cannot become possession. Reinforces this understanding, the normative formulation of art. 1,200, by which fair possession is one that is not violent, clandestine or precarious. Only when there is no violence, clandestinity and precariousness would an unfair possession become fair. It so happens that violence and clandestinity cease (art. 1208), but precariousness does not.	The normative formulation of art. 1,208 was silent about precariousness because it never ceases to exist, as it is a default. As there is nothing left to exist — as it is in acts of violence and clandestinity —, precariousness is already possession per se, that is, ipso jure: there is no act (violence or clandestinity) that would need to cease for possession to exist. By the way, when it comes to precariousness, there would not even be detention: there would have been possession since its inception.	Taking the sole paragraph of art. 1,198 with art. 1,203, it is understood that the detention that characterizes precariousness is a juris tantum presumption. Thus, if the initial presumption of tença in precariousness is elided, the seizure of the thing will imply possession. And so it will be because the situation maintains its initial character, that is, as it was acquired (art. 1,203). Therefore, if the precarist behaves as a possessor, and not as a keeper, there will be interversio possessionis and the precarious “possession” translates into ad usucapionem possession.

website	https://scon.stj.jus.br/SCON/
Date	June 29, 2020
time frame	there was not
search term	"possession and precaria and usucapiao"
Species of selected judgments	only judgments
Total judgments found	23
Number of judgments that dealt with the object of the research	17 (Note: because of the terms used, some judgments appeared in the search result because they contained the searched words, but they did not concern the object of the research and were disregarded).
Analysis method	Quali-quantitative
Judges who understood that the interversio possessionis of precarious possession was possible	• STJ, REsp. no. 154,733, 4th Panel, Rel. Min. Francisco Cesar Asfor Rocha, j. on May 12, 2000; and • STJ, REsp. no. 1.552.548/MS, 4th Panel, Min Rapporteur Marco Buzzi, j. on June 12, 2016
Judges who understood that it was not possibleinterversio possessionis of precarious possession	• STJ, REsp. no. 844.098/MG, 3rd Panel, Reporting Minister Nancy Andrighi, Reporting for Judgment Minister Sidnei Beneti, j. on June 11, 2008
Judges who did not analyze the matter, not even tangentially, as a result of Precedent no. 07.	• STJ, AgInt. in AREsp. nº 1.172.704/PR, 4th Panel, Min. Rel. Luis Felipe Salomão, j. on February 27, 2018; • STJ, AgInt. in AREsp. No. 990.262/SP, 4th Panel, Rel. Min. Conv. Lázaro Guimarães, j. on February 06, 2018; • STJ, AgInt. in AREsp. nº 1.012.678/GO, 4th Panel, Min. Rel. Luis Felipe Salomão, j. on September 26, 2017; • STJ, AgInt. in AREsp. nº 800.813/SP, 4th Panel, Min. Rel. Maria Isabel Gallotti, j. on August 02, 2016; • STJ, AgRg. in AREsp. nº 473.529/SC, 3rd Panel, Min. Rel. Paulo de Tarso Sanseverino, j. on August 6, 2015; • STJ, AgRg. in the nº 1.299.340/CE, 4th Panel, Min. Rel. Luis Felipe Salomão, j. on March 24, 2015; • STJ, AgRg in REsp. nº 1.415.166/SC, 3rd Panel, Min. Rel. Marco Aurelio Bellizze, j. on October 21, 2014; • STJ, AgRg. in AREsp. nº 180.559/RS, 4th Panel, Min. Rel. Luis Felipe Salomão, j. on December 17, 2013; • STJ, REsp. nº 932.972/RS, 4th Panel, Min. Rel. Luis Felipe Salomão, j. on September 27, 2011; • STJ, REsp. nº 241.814/SP, 4th Panel, Min. Rel. Luis Felipe Salomão, j. on December 09, 2008; • STJ, AgRg. at Ag. nº 579.417/SC, 4th Panel, Reporting Min. Aldir Passarinho Junior, j. on June 05, 2004; • STJ, REsp. nº 143.976/GO, 4th Panel, Min. Rel. Barros Monteiro, j. on April 06, 2004; • STJ, REsp. nº 328.348/MG, 4th Panel, Min. Rel. Ruy Rosado de Aguiar, j. on February 26, 2002; and • STJ, REsp. nº 5.232/MS, 3rd Panel, Reporting Min. Waldemar Zveiter, j. on November 13, 1990.

[TFNE1] Source: Own elaboration, 2020.

Brasil

Brasil

THE SPECIAL URBAN INDIVIDUAL AND COLLECTIVE USUCAPION BY INTERVERSIO POSSESSIONIS OF PRECARIOUS TENÇA IN POSSESSION AD USUCAPIONEM PRO MORADA, PRO LABORE E PRO MISERO

Abstract