O deferimento de medida liminar em ações possessórias que envolvam a posse coletiva de imóvel urbano para fins de moradia, no cenário do proprietário do imóvel não estar cumprido com a sua função social

Abstract

The art. 562 of the CPC of 2015 maintained the possibility of receiving preliminary injunction in possessory actions, without hearing the defendant, if the initial petition contains the four requirements described in art. 561, that is enough for the petitioner prove that it will be up to the magistrate to grant the measure injunction, in the requirements enumerated in the legal norm there is no hint that the author of the initial must prove that his possession, which is being disturbed, looted or threatened, was fulfilling his social function. It is on this procedural aspect that overflows to the material right that this dissertation is directed, that is, the Central point of this study is to question the requirements listed in the CPC for the deferral of an injunction in a possessory action. The fact of the author of the possessory action to be able to prove the four requirements described in article 561 of the CPC, does it have a subjective right to receive its preliminary injunction? Is it not reasonable to require the proposer of the initial, to prove that his property was fulfilling his social function before being molested, so that the injunction pleaded is granted? If the author of the possessory claim is benefited by a preliminary injunction despite not complying with the constitutional and legal duties to functionalize his property, is he not benefiting from his own awkwardness? Lastly, these and other issues that circulate in this subject will try to be resolved by this investigation, in order to supports the thesis that the social function of property should echo in the procedural field.