Uso privativo de área comum no condomínio edilício: da boa-fé objetiva à segurança jurídica

Abstract

This paper aims to analyze the privative use of common areas in condominium. Based on a functional analysis, the initial goal is to investigate the admissibility of such figure in Brazilian Law, as an expression of the private autonomy of co-owners at condominium, identifying the interest behind its creation, its basic aspects and how it is supposed to be ended. Furthermore, as the main purpose, we need to examine how the Brazilian courts deal with the major problem envolving the subject: the trying of the other co-owners to recover the common area after so many years of exclusive use. Firstly, the argument of adverse possession ( usucapio ), which has been rejected by the courts, denying that a single co-owner might become the only owner of what is common. Secondly, the argument of suppressio, a figure that is associated to the principle of objective good faith in Brazilian Law and that, in some cases, allows the co-owner to stay in the area without becoming the legal owner. Considering that suppressio itself is a temporary solution, it is necessary to set the parameters of the its use, in order to foresee, although in a limited way, the judicial decisions over the issue