A função social como pressuposto para a aquisição do direito subjetivo de propriedade pela usucapião (análise entre a posse ad interdicta e ad usucapionem em razão da função social)

Abstract

This academic thesis has legal basis for the recognition of the subject law of property by means of the institution of the adverse possession, which the ownership held by the claimant has to be fulfilled according to the social function provided constitutionally. Consequently, it is argued that the ownership that is able to create the conversion of a situation merely factual of domain on the thing which is in subjective ownership right has to be the one which not only preserves merely the individual interests, but its function may have a positive effect before all the socially integrated members, considering the principle of human dignity. Thus, the ad usucapionem possession does not tolerate acts merely to preserve the things and for speculative purposes because it is not seen in this conduct a socio-economic distinction and consequently visibility to this field. On the other hand, even if there is such destination it does not have to be analyzed in isolation, but associated with other values provided constitutionally which are unavailable to the citizen, such as: the right to life and own dignity, rights which directly interact with the right to dignified housing. Although the adverse possession be a principle of origin and private interest, from the moment the property was functioned to the social and human wishes by the Federal Constitution, the adverse possession got an axiological outline, and consequently it started to prize being more than having because it was also realized that the available legal assets are scarce and the values and principles extracted from the Constitution transcend the individual s willingness sphere. For this purpose, the present thesis defends the horizontal effectiveness of the fundamental rights to private relations where the social function would be inserted, and according to the positive law field it portrays the social function as the essential core of the adverse possession legal basis. As a result, this thesis suggests a re-reading of the Article 1.238 of the Brazilian Civil Code as well, it also questions the Federal Supreme Court recent decision which acknowledged the right to individual urban adverse possession to the detriment of the minimum module, which is essential source of city ordinance since the Master Plan, finally according to what provides the new law 13. 465/17, which presents the adverse possession as an instrument of land regularization; however, without dissociating it from the principles which integrate decent housing and the social function itself.