Usucapião da propriedade possível em terras públicas: O direito de superfície como instrumento de funcionalização da propriedade para efetivação do direito à moradia em áreas de exclusão social

Abstract

This thesis presents the adverse possession of the surface rights in public goods as an alternative to ensure the fundamental right to housing in areas of social exclusion. To achieve this purpose, there is a legal basis in the social role of property, especially in regard to its observance on public lands. It is used also as theoretical support to the thesis, the contemporary notion that today's property is a plural Institute, complex, borrowing Salvatore Pugliatti s ideas. Moreover, given the current contours of Civil-Constitutional Law, it is also important the fundamental analysis of the social role of the possession, which in many cases can even be prioritized in comparison with the purely formal property rights. In the construction of the thesis, two assumptions were used. The first relies on the possibility of recognition of ownership in public goods, basing it specifically in statutory schemes that admit this institute, as the Law 11.,977/2009, for example. The second takes shape based in the interpretation that the constitutional prohibition on public goods of adverse possession is not absolute, preventing only the acquisition of full ownership of these goods by individuals. The requirements and consequences of the adverse possession on public buildings for housing purposes model are analyzed from those bases, with particular emphasis on the animus of the possession. It is concluded in the end that this new acquisitive mode of the surface property can be an important tool for land regularization in areas of social exclusion, giving legal certainty to residents and turning into active ample stock land that in our times appears as dead capital, as advocates Hernando de Soto.