Multipropriedade Imobiliária: análise funcional das restrições ao direito de propriedade à luz da Lei n.o 13.777/18

Abstract

The main objective of this study is the functional analysis regarding the severe restrictions to the property right established by Law n. 13,777 of 2018, wich introduced the fractional ownership in brazilian legal system. Conceived as a special condominium regime in which the property held by the multi-owners is divided in space and time, this institute exasperates the approximation between rights in rem and obligations, insofar as it translates ownership that necessarily depends on a intense obligatory bundle for its existence, as well as for the fulfillment of its function and satisfaction of private autonomy. In addition, it demands the incidence of a plurality of normative sources – including consumerist protection – whose instigating composition comes do place in the light of constitutional principles and values. The severe limitations to property right in fractional ownership (multi-property real estate) are based on the aforementioned law, which included new articles in the Brazilian Civil Code and in the Law of Public Registries (Law n. 6,015 of 1973), but it can also be established by conventional relationship. For the functional analysis that is intended to be undertaken, the first chapter was dedicated to a brief history of the fractional ownership, as well as to define its concept and object, trace the contours of the legal regime introduced by brazilian law, culminating with the analysis of the aforementioned approximation between real and obligatory rights that this regime not only demonstrates, but also demands to perform its function. In the second chapter, taking into consideration the property rights restrictions, the incidence of consumer norms in fractional ownership was analysed, as well as the role of the professional administrator. Within this chapter, it was also proposed the study of practical and concrete hypotheses related to these points. Finally, the third chapter was dedicated to question certain restrictions expressly established by the new law, proposing its functional analysis, particularly concerning the use of immovable property – including norms regarding the compulsory lease of units held by multi-owners, through centralized administration. It was also studied the legitimacy of temporary loss of the right to use the property due to the breach of obligation to pay condominium charges and fees, what is operationalized through an interesting kind of legal antichresis instituted in this new regime, whose parameters for legitimate application are proposed.